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  THE LIFE OF JOHN MARSHALL

  Standard Library Edition


  IN FOUR VOLUMES

  VOLUME III




  [Illustration: JOHN MARSHALL
  From the portrait by Chester Harding]




  THE LIFE
  OF
  JOHN MARSHALL

  BY
  ALBERT J. BEVERIDGE

  VOLUME III

  CONFLICT AND CONSTRUCTION

  1800-1815

  [Illustration]

  BOSTON AND NEW YORK
  HOUGHTON MIFFLIN COMPANY
  The Riverside Press Cambridge




  COPYRIGHT, 1919, BY ALBERT J. BEVERIDGE

  ALL RIGHTS RESERVED




PREFACE


Marshall's great Constitutional opinions grew out of, or were addressed
to, serious public conditions, national in extent. In these volumes the
effort is made to relate the circumstances that required him to give to
the country those marvelous state papers: for Marshall's opinions were
nothing less than state papers and of the first rank. In order to
understand the full meaning of his deliverances and to estimate the just
value of his labors, it is necessary to know the historical sources of
his foremost expositions of the Constitution, and the historical
purposes they were intended to accomplish. Without such knowledge,
Marshall's finest pronouncements become mere legal utterances,
important, to be sure, but colorless and unattractive.

It is worthy of repetition, even in a preface, that the history of the
times is a part of his greatest opinions; and that, in the treatment of
them a résumé of the events that produced them must be given. For
example, the decision of Marbury _vs._ Madison, at the time and in the
manner it was rendered, was compelled by the political situation then
existing, unless the principle of judicial supremacy over legislation
was to be abandoned. The Judiciary Debate of 1802 in Congress--one of
the most brilliant as well as most important legislative engagements in
parliamentary history--can no more be overlooked by the student of
American Constitutional development, than the opinion of Marshall in
Marbury _vs._ Madison can be disregarded.

Again, in Cohens _vs._ Virginia, the Chief Justice rises to heights of
exalted--almost emotional--eloquence. Yet the case itself was hardly
more than a police court controversy. If the trivial fine of itinerant
peddlars of lottery tickets were alone involved, Marshall's splendid
passages become unnecessary and, indeed, pompous rhetoric. But when the
curtains of history are raised, we see the heroic part that Marshall
played and realize the meaning of his powerful language. While
Marshall's opinion in M'Culloch _vs._ Maryland, even taken by itself, is
a major treatise on constitutional government, it becomes a fascinating
chapter in an engaging story, when read in connection with an account of
the situation which compelled that outgiving.

The same thing is true of his other historic utterances. Indeed, it may
be said that his weightiest opinions were interlocking parts of one
great drama.

Much space has been given to the conspiracy and trials of Aaron Burr.
The combined story of that adventure and of those prosecutions has not
hitherto been told. In the conduct of the Burr trials, Marshall appears
in a more intimate and personal fashion than in any other phase of his
judicial career; the entire series of events that make up that page of
our history is a striking example of the manipulation of public opinion
by astute politicians, and is, therefore, useful for the self-guidance
of American democracy. Most important of all, the culminating result of
this dramatic episode was the definitive establishment of the American
law of treason.

In narrating the work of a jurist, the temptation is very strong to
engage in legal discussion, and to cite and comment upon the decisions
of other courts and the opinions of other judges. This, however, would
be the very negation of biography; nor would it add anything of interest
or enlightenment to the reader. Such information and analysis are given
fully in the various books on Constitutional law and history, in the
annotated reports, and in the encyclopædias of law upon the shelves of
every lawyer. Care, therefore, has been taken to avoid making any part
of the _Life of John Marshall_ a legal treatise.


The manuscript of these volumes has been read by Professor Edward
Channing of Harvard; Professor Max Farrand of Yale; Professor Edward S.
Corwin of Princeton; Professor William E. Dodd of Chicago University;
Professor Clarence W. Alvord of the University of Illinois; Professor
James A. Woodburn of Indiana University; Professor Charles H. Ambler of
the University of West Virginia; Professor Archibald Henderson of the
University of North Carolina; Professor D. R. Anderson of Richmond (Va.)
College; and Dr. H. J. Eckenrode of Richmond, Virginia.

The manuscript of the third volume has been read by Professor Charles A.
Beard of New York; Dr. Samuel Eliot Morison of Harvard; and Mr. Harold
J. Laski of Harvard. The manuscript of both the third and fourth volumes
has been read, from the lawyer's point of view, by Mr. Arthur Lord of
Boston, President of the Massachusetts Bar Association, and by Mr.
Charles Martindale of Indianapolis.

The chapters on the Burr conspiracy and trials have been read by
Professor Walter Flavius McCaleb of New York; Professor Isaac Joslin Cox
of the University of Cincinnati; and Mr. Samuel H. Wandell of New York.
Chapter Three of Volume Three (Marbury _vs._ Madison) has been read by
the Honorable Oliver Wendell Holmes, Associate Justice of the Supreme
Court of the United States; by the Honorable Philander Chase Knox,
United States Senator; and by Mr. James M. Beck of New York. Other
special chapters have been read by the Honorable Henry Cabot Lodge,
United States Senator; by Professor J. Franklin Jameson of the
Department of Historical Research of the Carnegie Institution of
Washington; by Professor Charles H. Haskins of Harvard; by Dr. William
Draper Lewis of Philadelphia, former Dean of the Law School of the
University of Pennsylvania; and by Mr. W. B. Bryan of Washington.

All of these gentlemen have made valuable suggestions of which I have
availed myself, and I gratefully acknowledge my indebtedness to them.
The responsibility for everything in these volumes, however, is, of
course, exclusively mine; and, in stating my appreciation of the comment
and criticism with which I have been favored, I do not wish to be
relieved of my burden by allowing the inference that any part of it
should be assigned to others.

I also owe it to myself again to express my heavy obligation to Mr.
Worthington Chauncey Ford, Editor of the Massachusetts Historical
Society. As was the case in the preparation of the first two volumes of
this work, Mr. Ford has extended to me the resources of his ripe
scholarship; while his wise counsel, steady encouragement, and unselfish
assistance, have been invaluable in the prosecution of a long and
exacting task.

I also again acknowledge my indebtedness to Mr. Lindsay Swift, Editor of
the Boston Public Library, who has read with critical care not only the
many drafts of the manuscript, but also the proofs of the entire work.
Mr. Swift has given, unstintedly, his rare literary taste and critical
accomplishment to the examination of these pages.

I also tender my hearty thanks to Dr. Gardner Weld Allen of Boston, who
has generously directed the preparation of the bibliography and
personally revised it.

Mr. David Maydole Matteson of Cambridge, Massachusetts, has made the
index of these volumes as he made that of the first two volumes, and has
combined both indexes into one. In rendering this service, Mr. Matteson
has also searched for points where text and notes could be made more
accurate; and I wish to express my appreciation of his kindness.

My thanks are also owing to the staff of The Riverside Press, and
particularly to Mr. Lanius D. Evans, to whose keen interest and watchful
care in the production of this work I am indebted for much of whatever
exactitude it may possess.

The manuscript sources have been acknowledged, in all instances, in the
footnotes where references to them have been made, except in the case of
the letters of Marshall to his relatives, for which I again thank those
descendants and connections of the Chief Justice named in the preface to
Volumes One and Two. The Hopkinson manuscripts are in the possession of
Mr. Edward Hopkinson of Philadelphia, to whom I am indebted for the
privilege of inspecting this valuable source and for furnishing me with
copies of important letters.

In preparing these volumes, Mr. A. P. C. Griffin, Assistant Librarian,
and Mr. John Clement Fitzpatrick, of the Manuscript Division of the
Library of Congress, have been even more obliging, if possible, than
they were in the preparation of the first part of this work. The
officers and their assistants of the Boston Public Library, the Boston
Athenæum, the Massachusetts State Library, the Massachusetts Historical
Society, the Pennsylvania Historical Society, the Virginia State
Library, the Indiana State Library, and the Indianapolis City Library,
have assisted whole-heartedly in the performance of my labors; and I am
glad of the opportunity to thank all of them for their interest and
help.

                                                 ALBERT J. BEVERIDGE




CONTENTS


  I. DEMOCRACY JUDICIARY                                               1

    The National Capital an unsightly "village in the woods"--
    Difficulty and danger of driving through the streets--
    Habits of the population--Taverns, shops, and dwellings--
    Warring interests--A miniature of the country--Meaning of the
    Republican victory of 1800--Anger, chagrin, and despair of
    the Federalists--Marshall's views of the political situation--
    He begins to strengthen the Supreme Court--The Republican
    programme of demolition--Jefferson's fear and hatred of the
    National Judiciary--The conduct of the National Judges gives
    Jefferson his opportunity--Their arrogance, harshness, and
    partisanship--Political charges to grand juries--Arbitrary
    application of the common law--Jefferson makes it a political
    issue--Rigorous execution of the Sedition Law becomes hateful
    to the people--The picturesque and historic trials that made
    the National Judiciary unpopular--The trial and conviction
    of Matthew Lyon; of Thomas Cooper; of John Fries; of Isaac
    Williams; of James T. Callender; of Thomas and Abijah Adams--
    Lawyers for Fries and Callender abandon the cases and leave
    the court-rooms--The famous Virginia and Kentucky Resolutions
    raise the fundamental question as to the power that can
    interpret the Constitution--Jefferson plans the assault on
    the National Judiciary.

  II. THE ASSAULT ON THE JUDICIARY                                    50

    The assault on the Judiciary begins--Intense excitement of
    political parties--Message on the Judiciary that Jefferson
    sent to Congress--Message he did not send--The Federalists
    fear the destruction of the National Judiciary--The grave
    defects of the Ellsworth Judiciary Act of 1789--The excellent
    Federalist Judiciary Act of 1801--The Republicans determined
    to repeal it--The great Judiciary debate begins in the
    Senate--The Federalists assert the exclusive power of the
    Supreme Court to decide on the constitutionality of acts of
    Congress--The dramatic language of Senator Gouverneur
    Morris--The Republican Senators evade the issue--The
    Federalist Senators press it--Aaron Burr takes his seat
    as Vice-President--His fateful Judiciary vote--Senator
    John Breckenridge denies the supervisory power of the
    Supreme Court over legislation--The debate in the House--
    Comments of the press--Extravagant speeches--Appearance
    and characteristics of John Randolph of Roanoke--The
    Federalists hint resistance--The lamentations of the
    Federalist newspapers--The Republicans repeal the
    Federalist Judiciary act--They also suspend the sessions
    of the Supreme Court for fourteen months--This done to
    prevent Marshall from overthrowing the Republican repeal
    of the Federalist Judiciary Act of 1801--Marshall proposes
    to his colleagues on the bench that they refuse to sit as
    Circuit Judges--They reject his proposal--The New England
    Federalist leaders begin to talk secession--The jubilation
    of the Republican press: "Huzza for the _Washington
    Judiciary_!"

  III. MARBURY VERSUS MADISON                                        101

    Power of the Judiciary over legislation the supreme issue--
    Federalist majorities in State Legislatures assert that
    Supreme Court can annul acts of Congress--Republican
    minorities vigorously resist the doctrine of Judiciary
    supremacy--Republican strength grows rapidly--Critical
    situation before the decision of Marbury _vs._ Madison--
    Power of the Supreme Court must be promptly asserted or
    permanently abandoned--Marshall confronts a serious
    dilemma--Escape from it apparently impossible--Republicans
    expect him to decide against Madison--They threaten
    impeachment--Marshall delivers his celebrated opinion--His
    reasoning on the power of the Judiciary merely repeats
    Federalist arguments in the Judiciary debate--He persuades
    his associates on the Supreme Bench that Section 13 of
    the Ellsworth Judiciary Act is unconstitutional--Startling
    boldness of his conception--History of Section 13--
    Drawn by framers of the Constitution and never before
    questioned--Marshall's opinion excites no immediate comment--
    Jefferson does not attack it until after his reëlection--
    Republican opposition to the Judiciary apparently subsides--
    Cause of this--Purchase of Louisiana--Jefferson compelled
    to take "unconstitutional" action--He counsels secrecy--
    The New England Federalist secession movement gains
    strength--Jefferson reëlected--Impeachment the next move.

  IV. IMPEACHMENT                                                    157

    Republicans plan to subjugate the Judiciary--Federalist
    Judges to be ousted and Republicans put in their places--
    Marshall's decision in United States _vs._ Fisher--The
    Republican impeachment programme carried out--The trial
    and the conviction of Judge Addison--The removal of Judge
    Pickering--The House impeaches Justice Chase of the Supreme
    Court--Republicans manipulate public opinion--The articles
    of impeachment--Federalists convinced that Chase is
    doomed--Marshall the chief object of attack--His alarm--He
    proposes radical method of reviewing decisions of the Supreme
    Court--Reason for Marshall's trepidation--The impeachment
    trial--Burr presides--He is showered with favors by the
    Administration--Appearance of Chase--His brilliant array
    of counsel--Luther Martin of Maryland--Examination of
    witnesses--Marshall testifies--He makes an unfavorable
    impression: "too much caution; too much fear; too much
    cunning"--Arguments of counsel--Weakness of the House
    managers--They are overwhelmed by counsel for Chase--
    Joseph Hopkinson's brilliant appeal--He captivates the
    Senate--Nicholson's fatal admission--Rodney's absurd
    speech--Luther Martin's great argument--Randolph closes
    for the managers--He apostrophizes Marshall--His pathetic
    breakdown--The Senate votes--Tense excitement in the
    Chamber--Chase acquitted--A determinative event in American
    history--Independence of the National Judiciary saved--
    Marshall for the first time secure in the office of Chief
    Justice.

  V. BIOGRAPHER                                                      223

    Marshall agrees to write the "Life of Washington"--He is
    unequipped for the task--His grotesque estimate of time,
    labor, and profits--Jefferson is alarmed--Declares that
    Marshall is writing for "electioneering purposes"--Postmasters
    as book agents--They take their cue from Jefferson--Rumor
    spreads that Marshall's book is to be partisan--Postmasters
    take few subscriptions--Parson Weems becomes chief solicitor
    for Marshall's book--His amusing canvass--Marshall is
    exasperatingly slow--Subscribers are disgusted at delay--
    First two volumes appear--Public is dissatisfied--Marshall
    is worried--He writes agitated letters--His publisher
    becomes disheartened--Marshall resents criticism--The
    lamentable inadequacy of the first three volumes--Fourth
    volume an improvement--Marshall's heavy task in the writing
    of the last volume--He performs it skillfully--Description
    of the foundation of political parties--Treatment of the
    policies of Washington's administrations--Jefferson calls
    Marshall's biography a "five-volume libel" and "a party
    diatribe"--He seeks an author to answer Marshall--He
    resolves to publish his "Anas" chiefly as a reply to
    Marshall--He bitterly attacks him and the biography--
    Other criticisms of Marshall's work--His lifelong worry
    over the imperfections of the first edition--He decides
    to revise it--He devotes nearly twenty years to the task--
    Work on the Supreme Bench while writing the first edition.

  VI. THE BURR CONSPIRACY                                            274

    Remarkable effect on the Senate of Burr's farewell speech--
    His desperate plight--Stanchness of friends--Jefferson's
    animosity--Unparalleled combination against Burr--He runs
    for Governor of New York and is defeated--Hamilton's lifelong
    pursuit of Burr--The historic duel--Dismemberment of the Union
    long and generally discussed--Washington's apprehensions in
    1784--Jefferson in 1803 approves separation of Western country
    "if it be for their good"--The New England secessionists ask
    British Minister for support--He promises his aid--Loyalty of
    the West--War with Spain imminent--People anxious to "liberate"
    Mexico--Invasion of that country Burr's long-cherished dream--
    He tries to get money from Great Britain--He promises British
    Minister to divide the Republic--His first Western journey--
    The people receive him cordially--He is given remarkable
    ovation at Nashville--Andrew Jackson's ardent friendship--
    Burr enthusiastically welcomed at New Orleans--War with Spain
    seemingly inevitable--Burr plans to lead attack upon Mexico
    when hostilities begin--Spanish agents start rumors against
    him--Eastern papers print sensational stories--Burr returns
    to the Capital--Universal demand for war with Spain--Burr
    intrigues in Washington--He again starts for the West--
    He sends his famous cipher dispatch to Wilkinson--
    Blennerhassett joins Burr--They purchase four hundred
    thousand acres of land on the Washita River--Plan to
    settle this land if war not declared--Wilkinson's eagerness
    for war--Burr arraigned in the Kentucky courts--He is
    discharged--Cheered by the people--Wilkinson determines to
    betray Burr--He writes mysterious letters to the President--
    Jefferson issues his Proclamation--Wilkinson's reign of
    military lawlessness in New Orleans--Arrest of Burr's agents,
    Bollmann and Swartwout--Arrest of Adair--Prisoners sent under
    guard by ship to Washington--The capital filled with wild
    rumors--Jefferson's slight mention of the Burr conspiracy in
    his Annual Message--Congress demands explanation--Jefferson
    sends Special Message denouncing Burr: his "guilt is placed
    beyond question"--Effect upon the public mind--Burr already
    convicted in popular opinion.

  VII. THE CAPTURE AND ARRAIGNMENT                                   343

    Bollmann and Swartwout arrive at Washington and are
    imprisoned--Adair and Alexander released by the court at
    Baltimore for want of proof--Eaton's affidavit against
    Burr--Bollmann and Swartwout apply to Supreme Court for
    writ of habeas corpus--Senate passes bill suspending the
    privilege of that writ--The House indignantly rejects
    the Senate Bill--Marshall delivers the first of his series
    of opinions on treason--No evidence against Bollmann and
    Swartwout, and Marshall discharges them--Violent debate in
    the House--Burr, ignorant of all, starts down the Cumberland
    and Mississippi with nine boats and a hundred men--First
    learns in Mississippi of the proceedings against him--
    Voluntarily surrenders to the civil authorities--The
    Mississippi grand jury refuses to indict Burr, asserting
    that he is guilty of no offense--Court refuses to discharge
    him--Wilkinson's frantic efforts to seize or kill him--He
    goes into hiding--Court forfeits his bond--He escapes--He is
    captured in Alabama and confined to Fort Stoddert--Becomes
    popular with both officers and men--Taken under military
    guard for a thousand miles through the wilderness--Arrives
    at Richmond--Marshall issues warrant for his delivery to the
    civil authorities--The first hearing before the Chief
    Justice--Shall Burr be committed for treason--The argument--
    Marshall's opinion--Probable cause to suspect Burr guilty of
    attempt to attack Mexico; no evidence upon which to commit
    Burr for treason--Marshall indirectly criticizes Jefferson--
    Burr's letters to his daughter--Popular demand for Burr's
    conviction and execution--Jefferson writes bitterly of
    Marshall--Administration scours country for evidence
    against Burr--Expenditure of public money for this purpose--
    Burr gains friends in Richmond--His attorneys become devoted
    to him--Marshall attends the famous dinner at the house of
    John Wickham, not knowing that Burr is to be a guest--He is
    denounced for doing so--His state of mind.

  VIII. ADMINISTRATION VERSUS COURT                                  398

    Richmond thronged with visitors--Court opens in the House
    of Delegates--The hall packed--Dress, appearance, and manner
    of spectators--Dangerous state of the public temper--Andrew
    Jackson arrives and publicly denounces Jefferson--He declares
    trial a "political persecution"--Winfield Scott's opinion:
    the President the real prosecutor--Grand jury formed and
    instructed--Believe Burr guilty--Burr's passionate reply to
    George Hay, the District Attorney--Hay reports to Jefferson--
    Burr's counsel denounce the Administration's efforts to
    excite the public against him--Attorneys on both sides
    speak to the public--Hay moves to commit Burr for treason--
    Marshall's difficult and dangerous situation--Jefferson
    instructs Hay--Government offers testimony to support
    its motion--Luther Martin arrives--Hay again reports to
    Jefferson, who showers the District Attorney with orders--
    Burr asks that the court grant a writ of subpoena _duces
    tecum_ directed to Jefferson--Martin boldly attacks the
    President--Wirt's clever rejoinder--Jefferson calls Martin
    that "Federal bulldog"--Wants Martin indicted--Marshall's
    opinion on Burr's motion for a subpoena _duces tecum_--He
    grants the writ--Hay writes Jefferson, who makes able and
    dignified reply--Wilkinson arrives--Washington Irving's
    description of him--Testimony before the grand jury--Burr
    and Blennerhassett indicted for treason and misdemeanor--
    Violent altercations between counsel.

  IX. WHAT IS TREASON?                                               470

    Burr becomes popular with Richmond society--Swartwout
    challenges Wilkinson to a duel--Marshall sets the trial for
    August 3--The prisoner's life in the penitentiary--Burr's
    letters to his daughter--Marshall asks his associates on the
    Supreme Bench for their opinions--Trial begins--Difficulty
    of selecting a jury--Everybody convinced of Burr's guilt--
    Hay writes Jefferson that Marshall favors Burr--At last
    jury is formed--The testimony--No overt act proven--Burr's
    counsel move that collateral testimony shall not be
    received--Counsel on both sides make powerful and brilliant
    arguments--Marshall delivers his famous opinion on the
    law of constructive treason--Jury returns verdict of not
    guilty--Jefferson declares Marshall is trying to keep
    evidence from the public--He directs Hay to press trial
    on indictment for misdemeanor--Burr demands letters called
    for in the subpoena _duces tecum_ to Jefferson--President
    attempts to arrange a truce with the Chief Justice--Hay
    despairs of convicting Burr for misdemeanor--Trial on
    this charge begins--Many witnesses examined--Prosecution
    collapses--Jury returns a verdict of not guilty--Hay moves
    to hold Burr and his associates for treason committed in
    Ohio--On this motion Marshall throws the door wide open
    to all testimony--He delivers his last opinion in the Burr
    trials--Refuses to hold Burr for treason, but commits him for
    misdemeanor alleged to have been committed in Ohio--Marshall
    adjourns court and hurries to the Blue Ridge--He writes Judge
    Peters of his situation during the trial--Jefferson denounces
    Marshall in Message he prepares for Congress--Cabinet induces
    him to strike out the most emphatic language--Marshall
    scathingly assailed in the press--The mob at Baltimore--
    Marshall is hanged in effigy--The attempt to expel Senator
    John Smith of Ohio from the Senate--In his report on Smith
    case, John Quincy Adams attacks Marshall's rulings and
    opinion in the Burr trials--Grave foreign complications
    probably save Marshall from impeachment.

  X. FRAUD AND CONTRACT                                              546

    The corrupting of the Georgia Legislature in the winter of
    1794-95--The methods of bribery--Prominent men involved--Law
    passed selling thirty-five million acres of land for less than
    one and one half cents an acre--Land companies pay purchase
    price and receive deeds--Merits of the transaction--Poverty of
    Georgia and power of the Indians--Invention of the cotton gin
    increases land values--Period of mad land speculation--The
    origin of the contract clause in the Constitution--Wrath
    of the people of Georgia on learning of the corrupt land
    legislation--They demand that the venal act be repealed--
    James Jackson leads the revolt--A new Legislature elected--
    It "rescinds" the land sale law--Records of the transaction
    publicly burned--John Randolph visits Georgia--Land companies
    sell millions of acres to innocent purchasers--Citizens of
    Boston purchase heavily--The news of Georgia's repeal of the
    land sale act reaches New England--War of the pamphlets--
    Georgia cedes to the Nation her claims to the disputed
    domain--Five million acres are reserved to satisfy claimants--
    The New England investors petition Congress for relief--
    Jefferson's commissioners report in favor of the investors--
    John Randolph's furious assault on the relief bill--He attacks
    Gideon Granger, Jefferson's Postmaster-General, for lobbying
    on the floor of the House--The origin of the suit Fletcher
    _vs._ Peck--The nature of this litigation--The case is
    taken to the Supreme Court--Marshall delivers his opinion--
    Legislation cannot be annulled merely because legislators
    voting for it were corrupted--"Great principles of justice
    protect innocent purchasers"--The Georgia land sale act,
    having been accepted, is a contract--The repeal of that act
    by the Georgia Legislature is a violation of the contract
    clause of the Constitution--Justice Johnson dissents--He
    intimates that Fletcher _vs._ Peck "is a mere feigned case"--
    Meaning, purpose, and effect of Marshall's opinion--In
    Congress, Randolph and Troup of Georgia mercilessly assail
    Marshall and the Supreme Court--The fight for the passage
    of a bill to relieve the New England investors is renewed--
    Marshall's opinion and the decision of the court influential
    in securing the final passage of the measure.

  APPENDIX

    A. THE PARAGRAPH OMITTED FROM THE FINAL DRAFT OF JEFFERSON'S
          MESSAGE TO CONGRESS, DECEMBER 8, 1801                      605

    B. LETTER OF JOHN TAYLOR "OF CAROLINE" TO JOHN BRECKENRIDGE
          CONTAINING ARGUMENTS FOR THE REPEAL OF THE FEDERALIST
          NATIONAL JUDICIARY ACT OF 1801                             607

    C. CASES OF WHICH CHIEF JUSTICE MARSHALL MAY HAVE HEARD BEFORE
          HE DELIVERED HIS OPINION IN MARBURY _vs._ MADISON          611

    D. TEXT, AS GENERALLY ACCEPTED, OF THE CIPHER LETTER OF AARON
          BURR TO JAMES WILKINSON, DATED JULY 29, 1806               614

    E. EXCERPT FROM SPEECH OF WILLIAM WIRT AT THE TRIAL OF AARON
          BURR                                                       616

    F. ESSENTIAL PART OF MARSHALL'S OPINION ON CONSTRUCTIVE
          TREASON DELIVERED AT THE TRIAL OF AARON BURR, ON
          MONDAY, AUGUST 31, 1807                                    619

  WORKS CITED IN THIS VOLUME      627




ILLUSTRATIONS


  JOHN MARSHALL                                   _Colored Frontispiece_

    From a portrait by Chester Harding painted in Washington in
    1828 for the Boston Athenæum and still in the possession of
    that institution.

  GOUVERNEUR MORRIS                                                   60

    After a drawing by Quenedey made in Paris, 1789 or 1790,
    in possession of his granddaughter, Mrs. Alfred Maudslay.
    By permission of Messrs. Charles Scribner's Sons.

  ASSOCIATE JUSTICES SITTING WITH MARSHALL IN THE CASE OF MARBURY
  VERSUS MADISON: WILLIAM CUSHING, WILLIAM PATERSON, SAMUEL CHASE,
  BUSHROD WASHINGTON, ALFRED MOORE                                   128

    Reproduced from etchings by Max and Albert Rosenthal in Hampton
    L. Carson's history of _The Supreme Court of the United States_,
    by the courtesy of the Lawyers' Coöperative Publishing Company,
    Rochester, New York. The etchings were made from originals as
    follows: Cushing, from a pastel by Sharpless, Philadelphia,
    1799, in the possession of the family; Paterson, from a painting
    in the possession of the family; Chase, from a painting by
    Charles Wilson Peale in Independence Hall, Philadelphia;
    Washington, from a painting by Chester Harding in the possession
    of the family; Moore, from a miniature in the possession of Mr.
    Alfred Moore Waddell, of Wilmington, North Carolina.

  SAMUEL CHASE                                                       160

    From Sanderson's _Biography of the Signers to the Declaration of
    Independence_, after a painting by Jarvis.

  FACSIMILE OF A LETTER FROM JOHN MARSHALL TO JUSTICE SAMUEL CHASE
  DATED JANUARY 23, 1804, ADVOCATING APPELLATE JURISDICTION IN
  THE LEGISLATURE                                                    176

  JOHN RANDOLPH                                                      188

    From the painting by Chester Harding in the Corcoran Gallery of
    Art, Washington, D.C.

  FACSIMILE OF A PART OF MARSHALL'S LIST OF CORRECTIONS FOR HIS
  LIFE OF WASHINGTON                                                 240

  AARON BURR                                                         276

    From a portrait by John Vanderlyn in the possession of Mr.
    Pierrepont Edwards, of Elizabeth, New Jersey.

  JAMES WILKINSON                                                    290

    After a print presented to the Library of Harvard University by
    Lucien Carr, Esq., from a plate in the possession of Colonel
    John Mason Brown, of Louisville, Kentucky, and now inserted in
    the Library's copy of Wilkinson's _Memoirs_, Philadelphia, 1816,
    vol. 1.

  JOHN MARSHALL                                                      350

    From a painting by Richard N. Brooke, on the Gallery Floor of
    the House of Representatives at the Capitol, Washington, D.C.

  THE STATE CAPITOL, RICHMOND, VIRGINIA                              400

    From an old photograph showing its appearance at the time of the
    Burr trial. It was not then stuccoed, and its bare brick walls
    were exposed between the columns or pilasters, giving it the
    appearance of a barnlike structure.

  LUTHER MARTIN                                                      428

    From a portrait in Independence Hall, Philadelphia.

  JOHN WICKHAM                                                       492

    From a portrait in the possession of Henry T. Wickham, Esq., of
    Richmond, Virginia.

  JOHN MARSHALL                                                      516

    From the portrait by Robert Matthew Sully, a nephew and pupil of
    Thomas Sully, in the possession of the Corcoran Gallery of Art,
    Washington, D.C.




LIST OF ABBREVIATED TITLES MOST FREQUENTLY CITED

  _All references here are to the List of Authorities at the end of
  this volume_


Adams: _U.S._ _See_ Adams, Henry. History of the United States.

Ames. _See_ Ames, Fisher. Works.

Channing: _Jeff. System._ _See_ Channing, Edward. Jeffersonian System,
1801-11.

Channing: _U.S._ _See_ Channing, Edward. History of the United States.

_Chase Trial._ _See_ Chase, Samuel. Trial.

Corwin. _See_ Corwin, Edward Samuel. Doctrine of Judicial Review.

Cutler. _See_ Cutler, William Parker, and Julia Perkins. Life, Journals,
and Correspondence of Manasseh Cutler.

Dillon. _See_ Marshall, John. Life, Character, and Judicial Services.
Edited by John Forrest Dillon.

_Eaton_: Prentiss. _See_ Eaton, William. Life.

_Jay_: Johnston. _See_ Jay, John. Correspondence and Public Papers.

_Jefferson Writings_: Washington. _See_ Jefferson, Thomas, Writings.
Edited by Henry Augustine Washington.

King. _See_ King, Rufus. Life and Correspondence.

McCaleb. _See_ McCaleb, Walter Flavius. Aaron Burr Conspiracy.

McMaster: _U.S._ _See_ McMaster, John Bach. History of the People of the
United States.

Marshall. _See_ Marshall, John. Life of George Washington.

_Memoirs, J. Q. A._: Adams. _See_ Adams, John Quincy. Memoirs.

Morris. _See_ Morris, Gouverneur. Diary and Letters.

_N.E. Federalism_: Adams. _See_ New-England Federalism, 1800-1815,
Documents relating to. Edited by Henry Adams.

Plumer. _See_ Plumer, William. Life.

_Priv. Corres._: Colton. _See_ Clay, Henry. Private Correspondence.
Edited by Calvin Colton.

_Records Fed. Conv._: Farrand. _See_ Records of the Federal Convention
of 1787.

Story. _See_ Story, Joseph. Life and Letters.

_Trials of Smith and Ogden._ _See_ Smith, William Steuben, and Ogden,
Samuel Gouverneur. Trials for Misdemeanors.

Wharton: _Social Life_. _See_ Wharton, Anne Hollingsworth. Social Life
in the Early Republic.

Wharton: _State Trials_. _See_ Wharton, Francis. State Trials of the
United States during the Administrations of Washington and Adams.

Wilkinson: _Memoirs_. _See_ Wilkinson, James. Memoirs of My Own Times.

_Works_: Colton. _See_ Clay, Henry. Works.

_Works_: Ford. _See_ Jefferson, Thomas. Works. Federal Edition. Edited
by Paul Leicester Ford.

_Writings, J. Q. A._: Ford. _See_ Adams, John Quincy. Writings. Edited
by Worthington Chauncey Ford.




THE LIFE OF JOHN MARSHALL




THE LIFE OF JOHN MARSHALL




CHAPTER I

DEMOCRACY: JUDICIARY

    Rigorous law is often rigorous injustice. (Terence.)

    The Federalists have retired into the Judiciary as a stronghold,
    and from that battery all the works of republicanism are to be
    battered down. (Jefferson.)

    There will be neither justice nor stability in any system, if
    some material parts of it are not independent of popular
    control. (George Cabot.)


A strange sight met the eye of the traveler who, aboard one of the
little river sailboats of the time, reached the stretches of the sleepy
Potomac separating Alexandria and Georgetown. A wide swamp extended
inland from a modest hill on the east to a still lower elevation of land
about a mile to the west.[1] Between the river and morass a long flat
tract bore clumps of great trees, mostly tulip poplars, giving, when
seen from a distance, the appearance of "a fine park."[2]

Upon the hill stood a partly constructed white stone building, mammoth
in plan. The slight elevation north of the wide slough was the site of
an apparently finished edifice of the same material, noble in its
dimensions and with beautiful, simple lines,[3] but "surrounded with a
rough rail fence 5 or 6 feet high unfit for a decent barnyard."[4] From
the river nothing could be seen beyond the groves near the banks of the
stream except the two great buildings and the splendid trees which
thickened into a seemingly dense forest upon the higher ground to the
northward.[5]

On landing and making one's way through the underbrush to the foot of
the eastern hill, and up the gullies that seamed its sides thick with
trees and tangled wild grapevines,[6] one finally reached the immense
unfinished structure that attracted attention from the river. Upon its
walls laborers were languidly at work.

Clustered around it were fifteen or sixteen wooden houses. Seven or
eight of these were boarding-houses, each having as many as ten or a
dozen rooms all told. The others were little affairs of rough lumber,
some of them hardly better than shanties. One was a tailor shop; in
another a shoemaker plied his trade; a third contained a printer with
his hand press and types, while a washerwoman occupied another; and in
the others there was a grocery shop, a pamphlets-and-stationery shop, a
little dry-goods shop, and an oyster shop. No other human habitation of
any kind appeared for three quarters of a mile.[7]

A broad and perfectly straight clearing had been made across the swamp
between the eastern hill and the big white house more than a mile away
to the westward. In the middle of this long opening ran a roadway, full
of stumps, broken by deep mud holes in the rainy season, and almost
equally deep with dust when the days were dry. On either border was a
path or "walk" made firm at places by pieces of stone; though even this
"extended but a little way." Alder bushes grew in the unused spaces of
this thoroughfare, and in the depressions stagnant water stood in
malarial pools, breeding myriads of mosquitoes. A sluggish stream
meandered across this avenue and broadened into the marsh.[8]

A few small houses, some of brick and some of wood, stood on the edge of
this long, broad embryo street. Near the large stone building at its
western end were four or five structures of red brick, looking much like
ungainly warehouses. Farther westward on the Potomac hills was a small
but pretentious town with its many capacious brick and stone residences,
some of them excellent in their architecture and erected solidly by
skilled workmen.[9]

Other openings in the forest had been cut at various places in the wide
area east of the main highway that connected the two principal
structures already described. Along these forest avenues were scattered
houses of various materials, some finished and some in the process of
erection.[10] Here and there unsightly gravel pits and an occasional
brick kiln added to the raw unloveliness of the whole.

Such was the City of Washington, with Georgetown near by, when Thomas
Jefferson became President and John Marshall Chief Justice of the United
States--the Capitol, Pennsylvania Avenue, the "Executive Mansion" or
"President's Palace," the department buildings near it, the residences,
shops, hostelries, and streets. It was a picture of sprawling
aimlessness, confusion, inconvenience, and utter discomfort.

When considering the events that took place in the National Capital as
narrated in these volumes,--the debates in Congress, the proclamations
of Presidents, the opinions of judges, the intrigues of
politicians,--when witnessing the scenes in which Marshall and Jefferson
and Randolph and Burr and Pinckney and Webster were actors, we must
think of Washington as a dismal place, where few and unattractive houses
were scattered along muddy openings in the forests.

There was on paper a harmonious plan of a splendid city, but the
realization of that plan had scarcely begun. As a situation for living,
the Capital of the new Nation was, declared Gallatin, a "hateful
place."[11] Most of the houses were "small miserable huts" which, as
Wolcott informed his wife, "present an awful contrast to the public
buildings."[12]

Aside from an increase in the number of residences and shops, the
"Federal City" remained in this state for many years. "The _Chuck_ holes
were not _bad_," wrote Otis of a journey out of Washington in 1815;
"that is to say they were none of them much deeper than the Hubs of the
hinder wheels. They were however exceedingly frequent."[13]
Pennsylvania Avenue was, at this time, merely a stretch of "yellow,
tenacious mud,"[14] or dust so deep and fine that, when stirred by the
wind, it made near-by objects invisible.[15] And so this street remained
for decades. Long after the National Government was removed to
Washington, the carriage of a diplomat became mired up to the axles in
the sticky clay within four blocks of the President's residence and its
occupant had to abandon the vehicle.

John Quincy Adams records in his diary, April 4, 1818, that on returning
from a dinner the street was in such condition that "our carriage in
coming for us ... was overset, the harness broken. We got home with
difficulty, twice being on the point of oversetting, and at the Treasury
Office corner we were both obliged to get out ... in the mud.... It was
a mercy that we all got home with whole bones."[16]

Fever and other malarial ills were universal at certain seasons of the
year.[17] "No one, from the North or from the high country of the South,
can pass the months of August and September there without intermittent
or bilious fever," records King in 1803.[18] Provisions were scarce and
Alexandria, across the river, was the principal source of supplies.[19]
"My God! What have I done to reside in such a city," exclaimed a French
diplomat.[20] Some months after the Chase impeachment[21] Senator Plumer
described Washington as "a little village in the midst of the
woods."[22] "Here I am in the wilderness of Washington," wrote Joseph
Story in 1808.[23]

Except a small Catholic chapel there was only one church building in the
entire city, and this tiny wooden sanctuary was attended by a
congregation which seldom exceeded twenty persons.[24] This absence of
churches was entirely in keeping with the inclination of people of
fashion. The first Republican administration came, testifies Winfield
Scott, in "the spring tide of infidelity.... At school and college, most
bright boys, of that day, affected to regard religion as base
superstition or gross hypocricy."[25]

Most of the Senators and Representatives of the early Congresses were
crowded into the boarding-houses adjacent to the Capitol, two and
sometimes more men sharing the same bedroom. At Conrad and McMunn's
boarding-house, where Gallatin lived when he was in the House, and where
Jefferson boarded up to the time of his inauguration, the charge was
fifteen dollars a week, which included service, "wood, candles and
liquors."[26] Board at the Indian Queen cost one dollar and fifty cents
a day, "brandy and whisky being free."[27] In some such inn the new
Chief Justice of the United States, John Marshall, at first, found
lodging.

Everybody ate at one long table. At Conrad and McMunn's more than thirty
men would sit down at the same time, and Jefferson, who lived there
while he was Vice-President, had the coldest and lowest place at the
table; nor was a better seat offered him on the day when he took the
oath of office as Chief Magistrate of the Republic.[28] Those who had to
rent houses and maintain establishments were in distressing case.[29] So
lacking were the most ordinary conveniences of life that a proposal was
made in Congress, toward the close of Jefferson's first administration,
to remove the Capital to Baltimore.[30] An alternative suggestion was
that the White House should be occupied by Congress and a cheaper
building erected for the Presidential residence.[31]

More than three thousand people drawn hither by the establishment of the
seat of government managed to exist in "this desert city."[32] One fifth
of these were negro slaves.[33] The population was made up of people
from distant States and foreign countries[34]--the adventurous, the
curious, the restless, the improvident. The "city" had more than the
usual proportion of the poor and vagrant who, "so far as I can judge,"
said Wolcott, "live like fishes by eating each other."[35] The sight of
Washington filled Thomas Moore, the British poet, with contempt.

  "This embryo capital, where Fancy sees
  Squares in morasses, obelisks in trees;
  Where second-sighted seers, even now, adorn
  With shrines unbuilt and heroes yet unborn,
  Though nought but woods and Jefferson they see,
  Where streets should run and sages _ought_ to be."[36]

Yet some officials managed to distill pleasure from materials which one
would not expect to find in so crude a situation. Champagne, it appears,
was plentiful. When Jefferson became President, that connoisseur of
liquid delights[37] took good care that the "Executive Mansion" was well
supplied with the choicest brands of this and many other wines.[38]
Senator Plumer testifies that, at one of Jefferson's dinners, "the wine
was the best I ever drank, particularly the champagne which was indeed
delicious."[39] In fact, repasts where champagne was served seem to have
been a favorite source of enjoyment and relaxation.[40]

Scattered, unformed, uncouth as Washington was, and unhappy and
intolerable as were the conditions of living there, the government of
the city was torn by warring interests. One would have thought that the
very difficulties of their situation would have compelled some harmony
of action to bring about needed improvements. Instead of this, each
little section of the city fought for itself and was antagonistic to the
others. That part which lay near the White House[41] strove exclusively
for its own advantage. The same was true of those who lived or owned
property about Capitol Hill. There was, too, an "Alexandria interest"
and a "Georgetown interest." These were constantly quarreling and each
was irreconcilable with the other.[42]

In all respects the Capital during the first decades of the nineteenth
century was a representation in miniature of the embryo Nation itself.
Physical conditions throughout the country were practically the same as
at the time of the adoption of the Constitution; and popular knowledge
and habits of thought had improved but slightly.[43]

A greater number of newspapers, however, had profoundly affected public
sentiment, and democratic views and conduct had become riotously
dominant. The defeated and despairing Federalists viewed the situation
with anger and foreboding. Of all Federalists John Marshall and George
Cabot were the calmest and wisest. Yet even they looked with gloom upon
the future. "There are some appearances which surprize me," wrote
Marshall on the morning of Jefferson's inauguration to his intimate
friend, Charles Cotesworth Pinckney.

"I wish, however, more than I hope that the public prosperity &
happiness will sustain no diminution under Democratic guidance. The
Democrats are divided into speculative theorists & absolute terrorists.
With the latter I am disposed to class Mr. Jefferson. If he ranges
himself with them it is not difficult to foresee that much difficulty is
in store for our country--if he does not, they will soon become his
enemies and calumniators."[44]

After Jefferson had been President for four months, Cabot thus
interpreted the Republican victory of 1800: "We are doomed to suffer all
the evils of _excessive_ democracy through the United States....
Maratists and Robespierrians everywhere raise their heads.... There will
be neither justice nor stability in any system, if some material parts
of it are not independent of popular control"[45]--an opinion which
Marshall, speaking for the Supreme Court of the Nation, was soon to
announce.

Joseph Hale wrote to King that Jefferson's election meant the triumph of
"the wild principles of uproar & misrule" which would produce
"anarchy."[46] Sedgwick advised our Minister at London: "The aristocracy
of virtue is destroyed."[47] In the course of a characteristic
Federalist speech Theodore Dwight exclaimed: "The great object of
Jacobinism is ... to force mankind back into a savage state.... We have
a country governed by blockheads and knaves; our wives and daughters are
thrown into the stews.... Can the imagination paint anything more
dreadful this side of hell."[48]

The keen-eyed and thoughtful John Quincy Adams was of the opinion that
"the basis of it all is democratic popularity.... There never was a
system of measures [Federalist] more completely and irrevocably
abandoned and rejected by the popular voice.... Its restoration would be
as absurd as to undertake the resurrection of a carcass seven years in
its grave."[49] A Federalist in the _Commercial Gazette_ of Boston,[50]
in an article entitled "Calm Reflections," mildly stated that "democracy
teems with fanaticism." Democrats "love liberty ... and, like other
lovers, they try their utmost to debauch ... their mistress."

There was among the people a sort of diffused egotism which appears to
have been the one characteristic common to Americans of that period. The
most ignorant and degraded American felt himself far superior to the
most enlightened European. "Behold the universe," wrote the chronicler
of Congress in 1802. "See its four quarters filled with savages or
slaves. Out of nine hundred millions of human beings but four millions
[Americans] are free."[51]

William Wirt describes the contrast of fact to pretension: "Here and
there a stately aristocratick palace, with all its appurtenances,
strikes the view: while all around for many miles, no other buildings
are to be seen but the little smoky huts and log cabins of poor,
laborious, ignorant tenants. And what is very ridiculous, these tenants,
while they approach _the great house_, cap in hand, with all the fearful
trembling submission of the lowest feudal vassals, boast in their
court-yards, with obstreperous exultation, that they live in a land of
freemen, a land of equal liberty and equal rights."[52]

Conservatives believed that the youthful Republic was doomed; they could
see only confusion, destruction, and decline. Nor did any nation of the
Old World at that particular time present an example of composure and
constructive organization. All Europe was in a state of strained
suspense during the interval of the artificial peace so soon to end. "I
consider the whole civilized world as metal thrown back into the furnace
to be melted over again," wrote Fisher Ames after the inevitable
resumption of the war between France and Great Britain.[53] "Tremendous
times in Europe!" exclaimed Jefferson when cannon again were thundering
in every country of the Old World. "How mighty this battle of lions &
tygers! With what sensations should the common herd of cattle look upon
it? With no partialities, certainly!"[54]

Jefferson interpreted the black forebodings of the defeated
conservatives as those of men who had been thwarted in the prosecution
of evil designs: "The clergy, who have missed their union with the
State, the Anglo men, who have missed their union with England, the
political adventurers who have lost the chance of swindling & plunder in
the waste of public money, will never cease to bawl, on the breaking up
of their sanctuary."[55]

Of all the leading Federalists, John Marshall was the only one who
refused to "bawl," at least in the public ear; and yet, as we have seen
and shall again find, he entertained the gloomy views of his political
associates. Also, he held more firmly than any prominent man in America
to the old-time Federalist principle of Nationalism--a principle which
with despair he watched his party abandon.[56] His whole being was fixed
immovably upon the maintenance of order and constitutional authority.
Except for his letter to Pinckney, Marshall was silent amidst the
clamor. All that now went forward passed before his regretful vision,
and much of it he was making ready to meet and overcome with the
affirmative opinions of constructive judicial statesmanship.

Meanwhile he discharged his duties--then very light--as Chief Justice.
But in doing so, he quietly began to strengthen the Supreme Court. He
did this by one of those acts of audacity that later marked the
assumptions of power which rendered his career historic. For the first
time the Chief Justice disregarded the custom of the delivery of
opinions by the Justices _seriatim_, and, instead, calmly assumed the
function of announcing, himself, the views of that tribunal. Thus
Marshall took the first step in impressing the country with the unity of
the highest court of the Nation. He began this practice in Talbot _vs_.
Seeman, familiarly known as the case of the Amelia,[57] the first
decided by the Supreme Court after he became Chief Justice.

During our naval war with France an armed merchant ship, the Amelia,
owned by one Chapeau Rouge of Hamburg, while homeward bound from
Calcutta, was taken by the French corvette, La Diligente. The Amelia's
papers, officers, and crew were removed to the French vessel, a French
crew placed in charge, and the captured ship was sent to St. Domingo as
a prize. On the way to that French port, she was recaptured by the
American frigate, Constitution, Captain Silas Talbot, and ordered to New
York for adjudication. The owner demanded ship and cargo without payment
of the salvage claimed by Talbot for his rescue. The case finally
reached the Supreme Court.

In the course of a long and careful opinion the Chief Justice held that,
although there had been no formal declaration of war on France, yet
particular acts of Congress had authorized American warships to capture
certain French vessels and had provided for the payment of salvage to
the captors. Virtually, then, we were at war with France. While the
Amelia was not a French craft, she was, when captured by Captain Talbot,
"an armed vessel commanded and manned by Frenchmen," and there was
"probable cause to believe" that she was French. So her capture was
lawful.

Still, the Amelia was not, in fact, a French vessel, but the property of
a neutral; and in taking her from the French, Talbot had, in reality,
rescued the ship and rendered a benefit to her owners for which he was
entitled to salvage. For a decree of the French Republic made it
"extremely probable" that the Amelia would be condemned by the French
courts in St. Domingo; and that decree, having been "promulgated" by the
American Government, must be considered by American courts "as an
authenticated copy of a public law of France interesting to all
nations." This, said Marshall, was "the real and only question in the
case." The first opinion delivered by Marshall as Chief Justice
announced, therefore, an important rule of international law and is of
permanent value.

Marshall's next case[58] involved complicated questions concerning lands
in Kentucky. Like nearly all of his opinions, the one in this case is of
no historical importance except that in it he announced for the second
time the views of the court. In United States _vs_. Schooner Peggy,[59]
Marshall declared that, since the Constitution makes a treaty a "supreme
law of the land," courts are as much bound by it as by an act of
Congress. This was the first time that principle was stated by the
Supreme Court. Another case[60] concerned the law of practice and of
evidence. This was the last case in which Marshall delivered an opinion
before the Republican assault on the Judiciary was made--the causes of
which assault we are now to examine.

At the time of his inauguration, Jefferson apparently meant to carry out
the bargain[61] by which his election was made possible. "We are all
Republicans, we are all Federalists," were the reassuring words with
which he sought to quiet those who already were beginning to regret that
they had yielded to his promises.[62] Even Marshall was almost favorably
impressed by the inaugural address. "I have administered the oath to the
Presdt.," he writes Pinckney immediately after Jefferson had been
inducted into office. "His inauguration speech ... is in general well
judged and conciliatory. It is in direct terms giving the lie to the
violent party declamation which has elected him, but it is strongly
characteristic of the general cast of this political theory."[63]

It is likely that, for the moment, the President intended to keep faith
with the Federalist leaders. But the Republican multitude demanded the
spoils of victory; and the Republican leaders were not slow or
soft-spoken in telling their chieftain that he must take those measures,
the assurance of which had captivated the popular heart and given "the
party of the people" a majority in both House and Senate.

Thus the Republican programme of demolition was begun. Federalist taxes
were, of course, to be abolished; the Federalist mint dismantled; the
Federalist army disbanded; the Federalist navy beached. Above all, the
Federalist system of National courts was to be altered, the newly
appointed Federalist National judges ousted and their places given to
Republicans; and if this could not be accomplished, at least the
National Judiciary must be humbled and cowed. Yet every step must be
taken with circumspection--the cautious politician at the head of the
Government would see to that. No atom of party popularity[64] must be
jeopardized; on the contrary, Republican strength must be increased at
any cost, even at the temporary sacrifice of principle.[65] Unless these
facts are borne in mind, the curious blending of fury and moderation--of
violent attack and sudden quiescence--in the Republican tactics during
the first years of Jefferson's Administration are inexplicable.

Jefferson determined to strike first at the National Judiciary. He hated
it more than any other of the "abominations" of Federalism. It was the
only department of the Government not yet under his control. His early
distrust of executive authority, his suspicion of legislative power when
his political opponents held it, were now combined against the National
courts which he did not control.

Impotent and little respected as the Supreme Court had been and still
was, Jefferson nevertheless entertained an especial fear of it; and this
feeling had been made personal by the thwarting of his cherished plan of
appointing his lieutenant, Spencer Roane of Virginia, Chief Justice of
the United States.[66] The elevation of his particular aversion, John
Marshall, to that office, had, he felt, wickedly robbed him of the
opportunity to make the new regime harmonious; and, what was far worse,
it had placed in that station of potential, if as yet undeveloped,
power, one who, as Jefferson had finally come to think, might make the
high court of the Nation a mighty force in the Government, retard
fundamental Republican reforms, and even bring to naught measures dear
to the Republican heart.

It seems probable that, at this time, Jefferson was the only man who had
taken Marshall's measure correctly. His gentle manner, his friendliness
and conviviality, no longer concealed from Jefferson the courage and
determination of his great relative; and Jefferson doubtless saw that
Marshall, with his universally conceded ability, would find means to
vitalize the National Judiciary, and with his fearlessness, would employ
those means.

"The Federalists," wrote Jefferson, "have retired into the judiciary as
a stronghold ... and from that battery all the works of republicanism
are to be beaten down and erased."[67] Therefore that stronghold must be
taken. Never was a military plan more carefully devised than was the
Republican method of capturing it. Jefferson would forthwith remove all
Federalist United States marshals and attorneys;[68] he would get rid of
the National judges whom Adams had appointed under the Judiciary Act of
1801.[69] If this did not make those who remained on the National Bench
sufficiently tractable, the sword of impeachment would be held over
their obstinate heads until terror of removal and disgrace should render
them pliable to the dominant political will. Thus by progressive stages
the Supreme Court would be brought beneath the blade of the executioner
and the obnoxious Marshall decapitated or compelled to submit.

To this agreeable course, so well adapted to his purposes, the President
was hotly urged by the foremost leaders of his party. Within two weeks
after Jefferson's inauguration, the able and determined William Branch
Giles of Virginia, faithfully interpreting the general Republican
sentiment, demanded "the removal of all its [the Judiciary's] executive
officers indiscriminately." This would get rid of the Federalist
marshals and clerks of the National courts; they had been and were,
avowed Giles, "the humble echoes" of the "vicious schemes" of the
National judges, who had been "the most unblushing violators of
constitutional restrictions."[70] Again Giles expressed the will of his
party: "The revolution [Republican success in 1800] is incomplete so
long as that strong fortress [the Judiciary] is in possession of the
enemy." He therefore insisted upon "the absolute repeal of the whole
judiciary system."[71]

The Federalist leaders quickly divined the first part of the Republican
purpose: "There is nothing which the [Republican] party more anxiously
wish than the destruction of the judicial arrangements made during the
last session," wrote Sedgwick.[72] And Hale, with dreary sarcasm,
observed that "the independence of our Judiciary is to be confirmed by
being made wholly subservient to the will of the legislature & the
caprice of Executive visions."[73]

The judges themselves had invited the attack so soon to be made upon
them.[74] Immediately after the Government was established under the
Constitution, they took a position which disturbed a large part of the
general public, and also awakened apprehensions in many serious minds.
Persons were haled before the National courts charged with offenses
unknown to the National statutes and unnamed in the Constitution;
nevertheless, the National judges held that these were indictable and
punishable under the common law of England.[75]

This was a substantial assumption of power. The Judiciary avowed its
right to pick and choose among the myriad of precedents which made up
the common law, and to enforce such of them as, in the opinion of the
National judges, ought to govern American citizens. In a manner that
touched directly the lives and liberties of the people, therefore, the
judges became law-givers as well as law-expounders. Not without reason
did the Republicans of Boston drink with loud cheers this toast: "The
Common Law of England! May wholesome statutes soon root out this engine
of oppression from America."[76]

The occasions that called forth this exercise of judicial authority were
the violation of Washington's Neutrality Proclamation, the violation of
the Treaty of Peace with Great Britain, and the numberless threats to
disregard both. From a strictly legal point of view, these indeed
furnished the National courts with plausible reasons for the position
they took. Certainly the judges were earnestly patriotic and sincere in
their belief that, although Congress had not authorized it,
nevertheless, that accumulation of British decisions, usages, and
customs called "the common law" was a part of American National
jurisprudence; and that, of a surety, the assertion of it in the
National tribunals was indispensable to the suppression of crimes
against the United States. In charging the National grand jury at
Richmond, May 22, 1793, Chief Justice John Jay first announced this
doctrine, although not specifically naming the common law.[77] Two
months later, Justice James Wilson claimed the same inclusive power in
his address to the grand jury at Philadelphia.[78]

In 1793, Joseph Ravara, consul for Genoa, was indicted in the United
States District Court of Pennsylvania for sending an anonymous and
threatening letter to the British Minister and to other persons in order
to extort money from them. There was not a word in any act of Congress
that referred even indirectly to such a misdemeanor, yet Justices Wilson
and Iredell of the Supreme Court, with Judge Peters of the District
Court, held that the court had jurisdiction,[79] and at the trial Chief
Justice Jay and District Judge Peters held that the rash Genoese could
be tried and punished under the common law of England.[80]

Three months later Gideon Henfield was brought to trial for the
violation of the Neutrality Proclamation. The accused, a sailor from
Salem, Massachusetts, had enlisted at Charleston, South Carolina, on a
French privateer and was given a commission as an officer of the French
Republic. As such he preyed upon the vessels of the enemies of France.
One morning in May, 1793, Captain Henfield sailed into the port of
Philadelphia in charge of a British prize captured by the French
privateer which he commanded.

Upon demand of the British Minister, Henfield was seized, indicted, and
tried in the United States Circuit Court for the District of
Pennsylvania.[81] In the absence of any National legislation covering
the subject, Justice Wilson instructed the grand jury that Henfield
could, and should, be indicted and punished under British
precedents.[82] When the case was heard the charge of the court to the
trial jury was to the same effect.[83]

The jury refused to convict.[84] The verdict was "celebrated with
extravagant marks of joy and exultation," records Marshall in his
account of this memorable trial. "It was universally asked," he says,
"what law had been offended, and under what statute was the indictment
supported? Were the American people already prepared to give to a
proclamation the force of a legislative act, and to subject themselves
to the will of the executive? But if they were already sunk to such a
state of degradation, were they to be punished for violating a
proclamation which had not been published when the offense was
committed, if indeed it could be termed an offense to engage with
France, combating for liberty against the combined despots of
Europe?"[85]

In this wise, political passions were made to strengthen the general
protest against riveting the common law of England upon the American
people by judicial fiat and without authorization by the National
Legislature.

Isaac Williams was indicted and tried in 1799, in the United States
Circuit Court for the District of Connecticut, for violating our treaty
with Great Britain by serving as a French naval officer. Williams proved
that he had for years been a citizen of France, having been "duly
naturalized" in France, "renouncing his allegiance to all other
countries, particularly to America, and taking an oath of allegiance to
the Republic of France." Although these facts were admitted by counsel
for the Government, and although Congress had not passed any statute
covering such cases, Chief Justice Oliver Ellsworth practically
instructed the jury that under the British common law Williams must be
found guilty.

No American could cease to be a citizen of his own country and become a
citizen or subject of another country, he said, "without the consent ...
of the community."[86] The Chief Justice announced as American law the
doctrine then enforced by European nations--"born a subject, always a
subject."[87] So the defendant was convicted and sentenced "to pay a
fine of a thousand dollars and to suffer four months imprisonment."[88]

These are examples of the application by the National courts of the
common law of England in cases where Congress had failed or refused to
act. Crime must be punished, said the judges; if Congress would not make
the necessary laws, the courts would act without statutory authority.
Until 1812, when the Supreme Court put an end to this doctrine,[89] the
National courts, with one exception,[90] continued to apply the common
law to crimes and offenses which Congress had refused to recognize as
such, and for which American statutes made no provision.

Practically all of the National and many of the State judges were highly
learned in the law, and, of course, drew their inspiration from British
precedents and the British bench. Indeed, some of them were more British
than they were American.[91] "Let a stranger go into our courts," wrote
Tyler, "and he would almost believe himself in the Court of the King's
Bench."[92]

This conduct of the National Judiciary furnished Jefferson with another
of those "issues" of which that astute politician knew how to make such
effective use. He quickly seized upon it, and with characteristic
fervency of phrase used it as a powerful weapon against the Federalist
Party. All the evil things accomplished by that organization of
"monocrats," "aristocrats," and "monarchists"--the bank, the treaty, the
Sedition Act, even the army and the navy--"have been solitary,
inconsequential, timid things," avowed Jefferson, "in comparison with
the audacious, barefaced and sweeping pretension to a system of law for
the U.S. without the adoption of their legislature, and so infinitely
beyond their power to adopt."[93]

But if the National judges had caused alarm by treating the common law
as though it were a statute of the United States without waiting for an
act of Congress to make it so, their manners and methods in the
enforcement of the Sedition Act[94] aroused against them an
ever-increasing hostility.

Stories of their performances on the bench in such cases--their tones
when speaking to counsel, to accused persons, and even to witnesses,
their immoderate language, their sympathy with one of the European
nations then at war and their animosity toward the other, their
partisanship in cases on trial before them--tales made up from such
material flew from mouth to mouth, until finally the very name and sight
of National judges became obnoxious to most Americans. In short, the
assaults upon the National Judiciary were made possible chiefly by the
conduct of the National judges themselves.[95]

The first man convicted under the Sedition Law was a Representative in
Congress, the notorious Matthew Lyon of Vermont. He had charged
President Adams with a "continual grasp for power ... an unbounded
thirst for ridiculous pomp, foolish adulation and selfish avarice."
Also, Lyon had permitted the publication of a letter to him from Joel
Barlow, in which the President's address to the Senate and the Senate's
response[96] were referred to as "the bullying speech of your President"
and "the stupid answer of your Senate"; and expressed wonder "that the
answer of both Houses had not been an order to send him [Adams] to the
mad house."[97]

Lyon was indicted under the accusation that he had tried "to stir up
sedition and to bring the President and Government of the United States
into contempt." He declared that the jury was selected from his
enemies.[98] Under the charge of Justice Paterson of the Supreme Court
he was convicted. The court sentenced him to four months in jail and the
payment of a fine of one thousand dollars.[99]

In the execution of the sentence, United States Marshal Jabez G. Fitch
used the prisoner cruelly. On the way to the jail at Vergennes, Vermont,
he was repeatedly insulted. He was finally thrown into a filthy,
stench-filled cell without a fireplace and with nothing "but the iron
bars to keep the cold out." It was "the common receptacle for
horse-thieves ... runaway negroes, or any kind of felons." He was
subjected to the same kind of treatment that was accorded in those days
to the lowest criminals.[100] The people were deeply stirred by the fate
of Matthew Lyon. Quick to realize and respond to public feeling,
Jefferson wrote: "I know not which mortifies me most, that I should fear
to write what I think, or my country bear such a state of things."[101]

One Anthony Haswell, editor of the _Vermont Gazette_ published at
Bennington, printed an advertisement of a lottery by which friends of
Lyon, who was a poor man, hoped to raise enough money to pay his fine.
This advertisement was addressed "to the enemies of political
persecutions in the western district of Vermont." It was asserted that
Lyon "is holden by the oppressive hand of usurped power in a loathsome
prison, deprived almost of the right of reason, and suffering all the
indignities which can be heaped upon him by a hard-hearted savage, who
has, to the disgrace of Federalism, been elevated to a station where he
can satiate his barbarity on the misery of his victims."[102] The
"savage" referred to was United States Marshal Fitch. In the same paper
an excerpt was reprinted from the _Aurora_ which declared that "the
administration publically notified that Tories ... were worthy of the
confidence of the government."[103]

Haswell was indicted for sedition. In defense he established the
brutality with which Lyon had been treated and proposed to prove by two
witnesses not then present (General James Drake of Virginia, and James
McHenry, President Adams's Secretary of War) that the Government favored
the occasional appointment of Tories to office. Justice Paterson ruled
that such evidence was inadmissible, and charged the jury that if
Haswell's intent was defamatory, he should be found guilty. Thereupon he
was convicted and sentenced to two months' imprisonment and the payment
of a fine of two hundred dollars.[104]

Dr. Thomas Cooper, editor of the _Sunbury and Northumberland Gazette_ in
Pennsylvania, in the course of a political controversy declared in his
paper that when, in the beginning of Adams's Administration, he had
asked the President for an office, Adams "was hardly in the infancy of
political mistake; even those who doubted his capacity thought well of
his intentions.... Nor were we yet saddled with the expense of a
permanent navy, or threatened ... with the existence of a standing
army.... Mr. Adams ... had not yet interfered ... to influence the
decisions of a court of justice."[105]

For this "attack" upon the President, Cooper was indicted under the
Sedition Law. Conducting his own defense, he pointed out the issues that
divided the two great parties, and insisted upon the propriety of such
political criticism as that for which he had been indicted.

Cooper was himself learned in the law,[106] and during the trial he
applied for a subpoena _duces tecum_ to compel President Adams to
attend as a witness, bringing with him certain documents which Cooper
alleged to be necessary to his defense. In a rage Justice Samuel Chase
of the Supreme Court, before whom, with Judge Richard Peters of the
District Court, the case was tried, refused to issue the writ. For this
he was denounced by the Republicans. In the trial of Aaron Burr,
Marshall was to issue this very writ to President Thomas Jefferson and,
for doing so, to be rebuked, denounced, and abused by the very
partisans who now assailed Justice Chase for refusing to grant it.[107]

Justice Chase charged the jury at intolerable length: "If a man attempts
to destroy the confidence of the people in their officers ... he
effectually saps the foundation of the government." It was plain that
Cooper "intended to provoke" the Administration, for had he not admitted
that, although he did not arraign the motives, he did mean "to censure
the conduct of the President"? The offending editor's statement that
"our credit is so low that we are obliged to borrow money at 8 per cent.
in time of peace," especially irritated the Justice. "I cannot," he
cried, "suppress my feelings at this gross attack upon the President."
Chase then told the jury that the conduct of France had "rendered a loan
necessary"; that undoubtedly Cooper had intended "to mislead the
ignorant ... and to influence their votes on the next election."

So Cooper was convicted and sentenced "to pay a fine of four hundred
dollars, to be imprisoned for six months, and at the end of that period
to find surety for his good behavior himself in a thousand, and two
sureties in five hundred dollars each."[108]

"Almost every other country" had been "convulsed with ... war,"
desolated by "every species of vice and disorder" which left innocence
without protection and encouraged "the basest crimes." Only in America
there was no "grievance to complain of." Yet our Government had been
"as grossly abused as if it had been guilty of the vilest tyranny"--as
if real "republicanism" could "only be found in the happy soil of
France" where "Liberty, like the religion of Mahomet, is propagated by
the sword." In the "bosom" of that nation "a dagger was concealed."[109]
In these terms spoke James Iredell, Associate Justice of the Supreme
Court, in addressing the grand jury for the District of Pennsylvania. He
was delivering the charge that resulted in the indictment for treason of
John Fries and others who had resisted the Federalist land tax.[110]

The triumph of France had, of course, nothing whatever to do with the
forcible protest of the Pennsylvania farmers against what they felt to
be Federalist extortion; nevertheless upon the charge of Justice Iredell
as to the law of treason, they were indicted and convicted for that
gravest of all offenses. A new trial was granted because one of the
jury, John Rhoad, "had declared a prejudice against the prisoner after
he was summoned as a juror."[111] On April 29, 1800, the second trial
was held. This time Justice Chase presided. The facts were agreed to by
counsel. Before the jury had been sworn, Chase threw on the table three
papers in writing and announced that these contained the opinion of the
judges upon the law of treason--one copy was for the counsel for the
Government, one for the defendant's counsel, and one for the jury.

William Lewis, leading attorney for Fries, and one of the ablest
members of the Philadelphia bar,[112] was enraged. He looked upon the
paper, flung it from him, declaring that "his hand never should be
polluted by a prejudicated opinion," and withdrew from the case,
although Chase tried to persuade him to "go on in any manner he liked."
Alexander J. Dallas, the other counsel for Fries, also withdrew, and the
terrified prisoner was left to defend himself. The court told him that
the judges, personally, would see that justice was done him. Again Fries
and his accomplices were convicted under the charge of the court. "In an
aweful and affecting manner"[113] Chase pronounced the sentence, which
was that the condemned men should be "hanged by the neck _until
dead_."[114]

The Republicans furiously assailed this conviction and sentence.
President Adams pardoned Fries and his associates, to the disgust and
resentment of the Federalist leaders.[115] On both sides the entire
proceeding was made a political issue.

On the heels of this "repetition of outrage," as the Republicans
promptly labeled the condemnation of Fries, trod the trial of James
Thompson Callender for sedition, over which it was again the fate
of the unlucky Chase to preside. _The Prospect Before Us_, written
by Callender under the encouragement of Jefferson,[116] contained a
characteristically vicious screed against Adams. His Administration had
been "a tempest of malignant passions"; his system had been "a French
war, an American navy, a large standing army, an additional load of
taxes." He "was a professed aristocrat and he had proved faithful and
serviceable to the British interest" by sending Marshall and his
associates to France. In the President's speech to Congress,[117] "this
hoary headed incendiary ... bawls to arms! then to arms!"

Callender was indicted for libel under the Sedition Law.

Before Judge Chase started for Virginia, Luther Martin had given him a
copy of Callender's pamphlet, with the offensive passages underscored.
During a session of the National court at Annapolis, Chase, in a
"jocular conversation," had said that he would take Callender's book
with him to Richmond, and that, "if Virginia was not too depraved" to
furnish a jury of respectable men, he would certainly punish Callender.
He would teach the lawyers of Virginia the difference between the
liberty and the licentiousness of the press.[118] On the road to
Richmond, James Triplett boarded the stage that carried the avenging
Justice of the Supreme Court. He told Chase that Callender had once been
arrested in Virginia as a vagrant. "It is a pity," replied Chase, "that
they had not hanged the rascal."[119]

But the people of Virginia, because of their hatred of the Sedition Law,
were ardent champions of Callender. Richmond lawyers were hostile to
Chase and were the bitter enemies of the statute which they knew he
would enforce. Jefferson was anxious that Callender "should be
substantially defended, whether in the first stages by public
interference or private contributors."[120]

One ambitious young attorney, George Hay, who seven years later was to
act as prosecutor in the greatest trial at which John Marshall ever
presided,[121] volunteered to defend Callender, animated to this course
by devotion to "the cause of the Constitution," in spite of the fact
that he "despised" his adopted client.[122] William Wirt was also
inspired to offer his services in the interest of free speech. These
Virginia attorneys would show this tyrant of the National Judiciary that
the Virginia bar could not be borne down.[123] Of all this the
hot-spirited Chase was advised; and he resolved to forestall the
passionate young defenders of liberty. He was as witty as he was
fearless, and throughout the trial brought down on Hay and Wirt the
laughter of the spectators.

But in the court-room there was one spectator who did not laugh. John
Marshall, then Secretary of State, witnessed the proceedings[124] with
grave misgivings.

Chase frequently interrupted the defendant's counsel. "What," said he,
"must there be a departure from common sense to find out a construction
favorable" to Callender? The Justice declared that a legal point which
Hay attempted to make was "a wild notion."[125] When a juror said that
he had never seen the indictment or heard it read, Chase declared that
of course he could not have formed or delivered an opinion on the
charges; and then denied the request that the indictment be read for the
information of the juror. Chase would not permit that eminent patriot
and publicist, Colonel John Taylor of Caroline, to testify that part of
Callender's statement was true; "No evidence is admissible," said the
Justice, "that does not ... justify the whole charge."[126]

William Wirt, in addressing the jury, was arguing that if the jury
believed the Sedition Act to be unconstitutional, and yet found
Callender guilty, they "would violate their oath." Chase ordered him to
sit down. The jury had no right to pass upon the constitutionality of
the law--"such a power would be extremely dangerous. Hear my words, I
wish the world to know them." The Justice then read a long and very able
opinion which he had carefully prepared in anticipation that this point
would be raised by the defense.[127] After another interruption, in
which Chase referred to Wirt as "the _young gentleman_" in a manner that
vastly amused the audience, the discomfited lawyer, covered with
confusion, abandoned the case.

When Hay, in his turn, was addressing the jury, Chase twice interrupted
him, asserting that the beardless attorney was not stating the law
correctly. The reporter notes that thereupon "Mr. Hay folded up and put
away his papers ... and refused to proceed." The Justice begged him to
go on, but Hay indignantly stalked from the room.

Acting under the instructions of Chase, Callender was convicted. The
court sentenced him to imprisonment for nine months, and to pay a fine
of two hundred dollars.[128]

The proceedings at this trial were widely published. The growing
indignation of the people at the courts rose to a dangerous point. The
force of popular wrath was increased by the alarm of the bar, which
generally had been the stanch supporter of the bench.[129]

Hastening from Richmond to New Castle, Delaware, Justice Chase
emphasized the opinion now current that he was an American Jeffreys and
typical of the spirit of the whole National Judiciary. Upon opening
court, he said that he had heard that there was a seditious newspaper in
the State. He directed the United States Attorney to search the files of
all the papers that could be found, and to report any abusive language
discovered. It was the haying season, and the grand jury, most of whom
were farmers, asked to be discharged, since there was no business for
them to transact. Chase refused and held them until the next day, in
order to have them return indictments against any printer that might
have criticized the Administration.[130] But the prosecutor's
investigation discovered nothing "treasonable" except a brief and
unpleasant reference to Chase himself. So ended the Delaware visit of
the ferret of the National Judiciary.

Thus a popular conviction grew up that no man was safe who assumed to
criticize National officials. The persecution of Matthew Lyon was
recalled, and the punishment of other citizens in cases less widely
known[131] became the subject of common talk,--all adding to the
growing popular wrath against the whole National Judiciary. The people
regarded those brought under the lash of justice as martyrs to the cause
of free speech; and so, indeed, they were.

The method of securing indictments and convictions also met with public
condemnation. In many States the United States Marshals selected what
persons they pleased as members of the grand juries and trial juries.
These officers of the National courts were, without exception,
Federalists; in many cases Federalist politicians. When making up juries
they selected only persons of the same manner of thinking as that of the
marshals and judges themselves.[132] So it was that the juries were
nothing more than machines that registered the will, opinion, or even
inclination of the National judges and the United States District
Attorneys. In short, in these prosecutions, trial by jury in any real
sense was not to be had.[133]

Certain State judges of the rabid Federalist type, apostles of "the
wise, the rich, and the good" political religion, were as insulting in
their bearing, as immoderate in their speech, and as intolerant in their
conduct as some of the National judges; and prosecutions in some State
courts were as bad as the worst of those in the National tribunals.

In Boston, when the Legislature of Massachusetts was considering the
Kentucky and Virginia Resolutions, John Bacon of Berkshire, a Republican
State Senator, and Dr. Aaron Hill of Cambridge, the leader of the
Republicans in the House, resisted the proposed answer of the Federalist
majority. Both maintained the ground upon which Republicans everywhere
now stood--that any State might disregard an act of Congress which it
deemed unconstitutional.[134] Bacon and Hill were supported by the solid
Republican membership of the Massachusetts Legislature, which the
_Columbian Centinel_ of Boston, a Federalist organ, called a
"contemptible minority," every member of which was "worse than an
infidel."[135]

The _Independent Chronicle_, the Republican newspaper of Boston,
observed that "It is difficult for the common capacities to conceive of
a sovereignty so situated that the _Sovereign shall have no right to
decide on any invasion of his constitutional powers_." Bacon's speech,
said the _Chronicle_, "has been read with delight by all true
Republicans, and will always stand as a monument of his firmness,
patriotism, and integrity.... The name of an _American_ Bacon will be
handed down to the latest generations of freemen with high respect and
gratitude, while the names of such as have aimed a _death wound_ to the
Constitution of the United States will rot _above ground_ and be
unsavoury to the nostrils of every lover of Republican freedom."[136]

The _Massachusetts Mercury_ of February 22, 1799, reports that "On
Tuesday last ... Chief Justice Dana ... commented on the contents of the
_Independent Chronicle_ of the preceding day. He properly stated to the
Jury that though he was not a subscriber to the paper, he obtained _that
one_ by accident, that if he was, his conscience would charge him with
assisting to support a traitorous enmity to the Government of his
Country."

Thereupon Thomas Adams, the publisher, and Abijah Adams, a younger
brother employed in the office, were indicted under the common law for
attempting "to bring the government into disrespect, hatred, and
contempt," and for encouraging sedition. Thomas Adams was fatally ill
and Abijah only was brought to trial. Under the instructions of the
court he was convicted. In pronouncing sentence Chief Justice Dana
delivered a political lecture.

The Virginia and Kentucky Resolutions, he said, had attempted "to
establish the monstrous position" that the individual States had the
right to pass upon the constitutionality of acts of Congress. He then
gave a résumé of the reply of the majority of the Massachusetts
Legislature to the Virginia Resolutions. This reply asserted that the
decisions of all questions arising under the Constitution and laws of
the United States "are exclusively vested in the Judicial Courts of the
United States," and that the Sedition Act was "wise and necessary, as an
audacious and unprincipled spirit of falsehood and abuse had been too
long unremittingly exerted for the purpose of _perverting_ public
opinion, and threatened to undermine the whole fabric of government."
The irate judge declared that the _Chronicle's_ criticism of this action
of the majority of the Legislature and its praise of the Republican
minority of that body was an "indecent and outrageous calumny."

"Censurable as the libel may be in itself," Dana continued, the
principles stated by Adams's counsel in conducting his defense were
equally "dangerous to public tranquility." These daring lawyers had
actually maintained the principle of the liberty of the press. They had
denied that an American citizen could be punished under the common law
of England. "Novel and disorganizing doctrines," exclaimed Dana in the
midst of a long argument to prove that the common law was operative in
the United States.[137]

In view of the fact that Abijah Adams was not the author of the libel,
nor even the publisher or editor of the _Chronicle_, but was "the only
person to whom the public can look for retribution," the court
graciously sentenced him to only one month's imprisonment, but required
him to find sureties for his good behavior for a year, and to pay the
costs of the trial.[138]

Alexander Addison, the presiding judge of one of the Pennsylvania State
courts, was another Federalist State judge whose judicial conduct and
assaults from the bench upon democracy had helped to bring courts into
disrepute. Some of his charges to grand juries were nothing but
denunciations of Republican principles.[139]

His manner on the bench was imperious; he bullied counsel, browbeat
witnesses, governed his associate judges, ruled juries. In one
case,[140] Addison forbade the Associate Judge to address the jury, and
prevented him from doing so.[141]

Nor did the judges stop with lecturing everybody from the bench.
Carrying with them the authority of their exalted positions, more than
one of them, notably Justice Chase and Judge Addison, took the stump in
political campaigns and made partisan speeches.[142]

So it fell out that the manners, language, and conduct of the judges
themselves, together with their use of the bench as a political rostrum,
their partisanship as to the European belligerents, their merciless
enforcement of the common law--aroused that public fear and hatred of
the courts which gave Jefferson and the Republicans their opportunity.
The questions which lay at the root of the Republican assault upon the
Judiciary would not of themselves, and without the human and dramatic
incidents of which the cases mentioned are examples, have wrought up
among citizens that fighting spirit essential to a successful onslaught
upon the National system of justice, which the Federalists had made so
completely their own.[143]

Those basic questions thus brought theatrically before the people's
eyes, had been created by the Alien and Sedition Laws, and by the
Virginia and Kentucky Resolutions which those undemocratic statutes
called forth. Freedom of speech on the one hand and Nationalism on the
other hand, the crushing of "sedition" as against that license which
Localism permitted--such were the issues which the imprudence and
hot-headedness of the Federalist judges had brought up for settlement.
Thus, unhappily, democracy marched arm in arm with State Rights, while
Nationalism found itself the intimate companion of a narrow, bigoted,
and retrograde conservatism.

Had not the Federalists, arrogant with power and frantic with hatred of
France and fast becoming zealots in their championship of Great Britain,
passed the drastic laws against liberty of the press and freedom of
speech; had not the Republican protest against these statutes taken the
form of the assertion that individual States might declare
unconstitutional and disregard the acts of the National Legislature;
and finally, had not National tribunals and some judges of State courts
been so harsh and insolent, the Republican assault upon the National
Judiciary,[144] the echoes of which loudly sound in our ears even to the
present day, probably never would have been made.

But for these things, Marbury _vs._ Madison[145] might never have been
written; the Supreme Court might have remained nothing more than the
comparatively powerless institution that ultimate appellate judicial
establishments are in other countries; and the career of John Marshall
might have been no more notable and distinguished than that of the many
ghostly figures in the shadowy procession of our judicial history. But
the Republican condemnations of the severe punishment that the
Federalists inflicted upon anybody who criticized the Government, raised
fundamental issues and created conditions that forced action on those
issues.


FOOTNOTES:

[1] Gallatin to his wife, Jan. 15, 1801, Adams: _Life of Albert
Gallatin_, 252; also Bryan: _History of the National Capital_, I,
357-58.

[2] _First Forty Years of Washington Society_: Hunt, 11.

[3] _Ib._; and see Wolcott to his wife, July 4, 1800, Gibbs:
_Administrations of Washington and John Adams_, II, 377.

[4] Plumer to Thompson, Jan. 1, 1803, Plumer MSS. Lib. Cong.

[5] Gallatin to his wife, Jan. 15, 1801, Adams: _Gallatin_, 252-53.

[6] Hunt, 10.

[7] Gallatin to his wife, _supra_.

[8] Bryan, I, 357-58.

[9] A few of these are still standing and occupied.

[10] Gallatin to his wife, _supra_; also Wharton: _Social Life in the
Early Republic_, 58-59.

[11] Gallatin to his wife, Aug. 17, 1802, Adams: _Gallatin_, 304.

[12] Wolcott to his wife, July 4, 1800, Gibbs, II, 377.

[13] Otis to his wife, Feb. 28, 1815, Morison: _Life and Letters of
Harrison Gray Otis_, II, 170-71. This letter is accurately descriptive
of travel from the National Capital to Baltimore as late as 1815 and
many years afterward.

"The Bladensburg _run, before we came to the bridge_, was happily in no
one place _above_ the Horses bellies.--As we passed thro', the driver
pointed out to us the spot, right under our wheels, where all the stage
horses last year were drowned, but then he consoled us by shewing the
tree, on which all the Passengers _but one_, were saved. Whether that
one was gouty or not, I did not enquire....

"We ... arriv'd safe at our first stage, Ross's, having gone at a rate
rather exceeding two miles & an half per hour.... In case of a _break
Down_ or other accident, ... I should be sorry to stick and freeze in
over night (_as I have seen happen to twenty waggons_) for without an
extraordinary thaw I could not be dug out in any reasonable dinner-time
the next day."

Of course conditions were much worse in all parts of the country, except
the longest and most thickly settled sections.

[14] Parton: _Life of Thomas Jefferson_, 622.

[15] Plumer to his wife, Jan. 25, 1807, Plumer MSS. Lib. Cong.

[16] _Memoirs of John Quincy Adams_: Adams, IV, 74; and see Quincy:
_Life of Josiah Quincy_, 186.

Bayard wrote to Rodney: "four months [in Washington] almost killed me."
(Bayard to Rodney, Feb. 24, 1804, N. Y. Library Bulletin, IV, 230.)

[17] Margaret Smith to Susan Smith, Dec. 26, 1802, Hunt, 33; also Mrs.
Smith to her husband, July 8, 1803, _ib._ 41; and Gallatin to his wife,
Aug. 17, 1802, Adams: _Gallatin_, 304-05.

[18] King to Gore, Aug. 20, 1803, _Life and Correspondence of Rufus
King_: King, IV, 294; and see Adams: _History of the United States_, IV,
31.

[19] Gallatin to his wife, Jan. 15, 1801, Adams: _Gallatin_, 253.

[20] Wharton: _Social Life_, 60.

[21] See _infra_, chap. IV.

[22] Plumer to Lowndes, Dec. 30, 1805, Plumer: _Life of William Plumer_,
244.

"The wilderness, alias the federal city." (Plumer to Tracy, May 2, 1805,
Plumer MSS. Lib. Cong.)

[23] Story to Fay, Feb. 16, 1808, _Life and Letters of Joseph Story_:
Story, I, 161.

[24] This was a little Presbyterian church building, which was abandoned
after 1800. (Bryan, I, 232; and see Hunt, 13-14.)

[25] _Memoirs of Lieut.-General Scott_, 9-10. Among the masses of the
people, however, a profound religious movement was beginning. (See
Semple: _History of the Rise and Progress of the Baptists in Virginia_;
and Cleveland: _Great Revival in the West_.)

A year or two later, religious services were held every Sunday afternoon
in the hall of the House of Representatives, which always was crowded on
these occasions. The throng did not come to worship, it appears;
seemingly, the legislative hall was considered to be a convenient
meeting-place for gossip, flirtation, and social gayety. The plan was
soon abandoned and the hall left entirely to profane usages. (Bryan, I,
606-07.)

[26] Gallatin to his wife, Jan. 15, 1801, Adams: _Gallatin_, 253.

[27] Wharton: _Social Life_, 72.

[28] Hunt, 12.

[29] See Merry to Hammond, Dec. 7, 1803, as quoted in Adams: _U.S._ II,
362.

Public men seldom brought their wives to Washington because of the
absence of decent accommodations. (Mrs. Smith to Mrs. Kirkpatrick, Dec.
6, 1805, Hunt, 48.)

"I do not perceive how the members of Congress can possibly secure
lodgings, unless they will consent to live like scholars in a college or
monks in a monastery, crowded ten or twenty in a house; and utterly
excluded from society." (Wolcott to his wife, July 4, 1800, Gibbs, II,
377.)

[30] Plumer to Thompson, March 19,1804, Plumer MSS. Lib. Cong. And see
_Annals_, 8th Cong. 1st Sess. 282-88. The debate is instructive. The
bill was lost by 9 yeas to 19 nays.

[31] Hildreth: _History of the United States_, V, 516-17.

[32] Plumer to Lowndes, Dec. 30, 1805, Plumer, 337.

[33] Channing: _History of the United States_, IV, 245.

[34] Bryan, I, 438.

[35] Wolcott to his wife, July 4, 1800, Gibbs, II, 377.

"The workmen are the refuse of that class and, nevertheless very high in
their demands." (La Rochefoucauld-Liancourt: _Travels Through the United
States of North America_, III, 650.)

[36] "To Thomas Hume, Esq., M.D.," Moore: _Poetical Works_, II, 83.

[37] See Jefferson to Short, Sept. 6, 1790, _Works of Thomas Jefferson_:
Ford, VI, 146; same to Mrs. Adams, July 7, 1785, _ib._ IV, 432-33; same
to Peters, June 30,1791, _ib._ VI, 276; same to Short, April 24, 1792,
_ib._ 483; same to Monroe, May 26, 1795, _ib._ VIII, 179; same to Jay,
Oct. 8, 1787, _Memoir, Correspondence, and Miscellanies, from the Papers
of Thomas Jefferson_: Randolph, II, 249; also see Chastellux: _Travels
in North America in the Years 1780-81-82_, 299.

[38] See Singleton: _Story of the White House_, I, 42-43.

[39] Plumer to his wife, Dec. 25, 1802, Plumer, 246.

[40] "Mr. Granger [Jefferson's Postmaster-General] ... after a few
bottles of champagne were emptied, on the observation of Mr. Madison
that it was the most delightful wine when drank in moderation, but that
more than a few glasses always produced a headache the next day,
remarked with point that this was the very time to try the experiment,
as the next day being Sunday would allow time for a recovery from its
effects. The point was not lost upon the host and bottle after bottle
came in." (S. H. Smith to his wife, April 26, 1803. Hunt, 36.)

[41] At that time it was called "The Executive Mansion" or "The
President's Palace."

[42] Bryan, I, 44; also see La Rochefoucauld-Liancourt, III, 642-51.

[43] See vol. I, chaps. VI and VII, of this work.

[44] Marshall to Pinckney, March 4, 1801, MS. furnished by Dr. W. S.
Thayer of Baltimore.

[45] Cabot to Wolcott, Aug. 3, 1801, Lodge: _Life and Letters of George
Cabot_, 322.

George Cabot was the ablest, most moderate and far-seeing of the New
England Federalists. He feared and detested what he called "excessive
democracy" as much as did Ames, or Pickering, or Dwight, but, unlike his
brother partisans, did not run to the opposite extreme himself and never
failed to assert the indispensability of the democratic element in
government. Cabot was utterly without personal ambition and was very
indolent; otherwise he surely would have occupied a place in history
equal to that of men like Madison, Gallatin, Hamilton, and Marshall.

[46] Hale to King, Dec. 19, 1801, King, IV, 39.

[47] Sedgwick to King, Dec. 14, 1801, _ib._ 34-35.

[48] Dwight's oration as quoted in Adams: U.S. I, 225.

[49] J. Q. Adams to King, Oct. 8,1802, _Writings of John Quincy Adams_:
Ford, III, 8-9. Within six years Adams abandoned a party which offered
such feeble hope to aspiring ambition. (See _infra_, chap, IX.)

[50] J. Russell's _Gazette-Commercial and Political_, January 28, 1799.

[51] _History of the Last Session of Congress Which Commenced 7th Dec.
1801_ (taken from the _National Intelligencer_). Yet at that time in
America manhood suffrage did not exist excepting in three States, a
large part of the people could not read or write, imprisonment for debt
was universal, convicted persons were sentenced to be whipped in public
and subjected to other cruel and disgraceful punishments. Hardly a
protest against slavery was made, and human rights as we now know them
were in embryo, so far as the practice of them was concerned.

[52] Wirt: _Letters of the British Spy_, 10-11.

These brilliant articles, written by Wirt when he was about thirty years
old, were published in the Richmond _Argus_ during 1803. So well did
they deceive the people that many in Gloucester and Norfolk declared
that they had seen the British Spy. (Kennedy: _Memoirs of the Life of
William Wirt_, I, 111, 113.)

[53] Ames to Pickering, Feb. 4, 1807, Pickering MSS. Mass. Hist. Soc.

[54] Jefferson to Rush, Oct. 4, 1803, _Works_: Ford, X, 32.

Immediately after his inauguration, Jefferson restated the American
foreign policy announced by Washington. It was the only doctrine on
which he agreed with Marshall.

"It ought to be the very first object of our pursuits to have nothing to
do with European interests and politics. Let them be free or slaves at
will, navigators or agricultural, swallowed into one government or
divided into a thousand, we have nothing to fear from them in any
form.... To take part in their conflicts would be to divert our energies
from creation to destruction." (Jefferson to Logan, March 21, 1801,
_Works_: Ford, IX, 219-20.)

[55] Jefferson to Postmaster-General (Gideon Granger), May 3, 1801,
_Works_: Ford, IX, 249.

The democratic revolution that overthrew Federalism was the beginning of
the movement that finally arrived at the abolition of imprisonment for
debt, the bestowal of universal manhood suffrage, and, in general, the
more direct participation in every way of the masses of the people in
their own government. But in the first years of Republican power there
was a pandering to the crudest popular tastes and passions which, to
conservative men, argued a descent to the sansculottism of France.

[56] See _infra_, chaps. III and VI; also vol. IV, chap. I.

[57] 1 Cranch, 1 _et seq._

[58] Wilson _vs._ Mason, 1 Cranch, 45-101.

[59] 1 Cranch, 102-10.

[60] Turner _vs._ Fendall, 1 Cranch, 115-30.

[61] See vol. II, 531-47, of this work.

[62] See Adams: _U.S._ I, chaps. IX and X, for account of the
revolutionary measures which the Republicans proposed to take.

[63] Marshall to Pinckney, March 4, 1801, "four o'clock," MS.

[64] "It is the sole object of the Administration to acquire
popularity." (Wolcott to Cabot, Aug. 28, 1802, Lodge: _Cabot_, 325.)

"The President has ... the itch for popularity." (J. Q. Adams to his
father, November, 1804, _Writings, J. Q. A._: Ford, III, 81.)

"The mischiefs of which his immoderate thirst for ... popularity are
laying the foundation, are not immediately perceived." (Adams to Quincy,
Dec. 4, 1804, Quincy, 64.)

"It seems to be a great primary object with him never to pursue a
measure if it becomes unpopular." (Plumer's Diary, March 4, 1805, Plumer
MSS. Lib. Cong.)

"In dress, conversation, and demeanor he studiously sought and displayed
the arts of a low demagogue seeking the gratification of the democracy
on whose voices and votes he laid the foundation of his power."
(Quincy's Diary, Jan. 1806, Quincy, 93.)

[65] Ames to Gore, Dec. 13, 1802, _Works of Fisher Ames_: Ames, I, 309.

[66] Dodd in _American Historical Review_, XII, 776; and see next
chapter.

[67] Jefferson to Dickinson, Dec. 19, 1801, _Writings of Thomas
Jefferson_: Washington, IV, 424.

[68] "The only shield for our Republican citizens against the federalism
of the courts is to have the attorneys & Marshals republicans."
(Jefferson to Stuart, April 8, 1801, _Works_: Ford, IX, 248.)

[69] "The judge of course stands until the law [Judiciary Act of 1801]
shall be repealed which we trust will be at the next Congress."
(Jefferson to Stuart, April 8, 1801, _Works_: Ford, IX, 247.) For two
weeks Jefferson appears to have been confused as to the possibility of
repealing the Judiciary Act of 1801. A fortnight before he informed
Stuart that this course would be taken, he wrote Giles that "the courts
being so decidedly federal and irremovable," it was "indispensably
necessary" to appoint "republican attorneys and marshals." (Jefferson to
Giles, March 23, 1801, MSS. Lib. Cong. as quoted by Carpenter in
_American Political Science Review_, IX, 522.)

But the repeal had been determined upon within six weeks after
Jefferson's inauguration as his letter to Stuart shows.

[70] Giles to Jefferson, March 16, 1801, Anderson: _William Branch
Giles--A Study in the Politics of Virginia 1790-1830_, 77.

[71] Same to same, June 1, 1801, _ib._ 80.

[72] Sedgwick to King, Dec. 14, 1801, King, IV, 36.

[73] Hale to King, Dec. 19, 1801, King, IV, 39.

[74] It must be carefully kept in mind that from the beginning of the
Revolution most of the people were antagonistic to courts of any kind,
and bitterly hostile to lawyers. (See vol. I, 297-99, of this work.)

Braintree, Mass., in 1786, in a town meeting, denounced lawyers and
demanded by formal resolution the enactment of "such laws ... as may
crush or, at least, put a proper check of restraint" upon them.

Dedham, Mass., instructed its members of the Legislature to secure the
passage of laws that would "check" attorneys; and if this were not
practicable, then "you are to endeavor [to pass a bill declaring] that
the order of Lawyers be totally abolished." (Warren: _History of the
American Bar_, 215.) All this, of course, was the result of the bitter
hardships of debtors.

[75] For an able defense of the adoption by the National courts of the
British common law, see _Works of the Honourable James Wilson_: Wilson,
III, 384.

[76] _Columbian Centinel_, July 11, 1801, as quoted in Warren, 225-27.

[77] _Correspondence and Public Papers of John Jay_: Johnston, III,
478-85.

[78] Wharton: _State Trials of the U.S. during the Administrations of
Washington and Adams_, 60 _et seq._; and see Wilson's law lecture on the
subject, Wilson, III, 384.

[79] 2 Dallas, 297-99.

[80] _Ib._ Ravara was tried and convicted by the jury under the
instructions of the bench, "but he was afterward pardoned on condition
that he surrender his commission and Exequatur." (Wharton: _State
Trials_, 90-92.)

[81] For the documents preceding the arrest and prosecution of Henfield,
see Wharton: _State Trials_, footnotes to 49-52.

[82] See Wilson's charge, Wharton: _State Trials_, 59-66.

[83] See Wharton's summary of Wilson's second charge, _ib._ footnote to
85.

[84] _Ib._ 88.

[85] Marshall: _Life of George Washington_, 2d ed. II, 273-74. After the
Henfield and Ravara cases, Congress passed a law applicable to such
offenses. (See Wharton: _State Trials_, 93-101.)

[86] Wharton: _State Trials_, 653-54.

[87] This was the British defense for impressment of seamen on American
ships. It was one of the chief points in dispute in the War of 1812. The
adherence of Federalists to this doctrine was one of the many causes of
the overthrow of that once great party. (See _infra_, vol. IV, chap. I,
of this work.)

[88] Wharton: _State Trials_, 654. Upon another indictment for having
captured a British ship and crew, Williams, with no other defense than
that offered on his trial under the first indictment, pleaded guilty,
and was sentenced to an additional fine of a thousand dollars, and to
further imprisonment of four months. (_Ib._; see also vol II, 495, of
this work.)

[89] U.S. _vs._ Hudson, 7 Cranch, 32-34. "Although this question is
brought up now for the first time to be decided by this court, we
consider it as having been long since settled in public opinion.... The
legislative authority of the Union must first make an act a crime, affix
a punishment to it and declare the court that shall have jurisdiction of
the offense." (Justice William Johnson delivering the opinion of the
majority of the court, _ib._)

Joseph Story was frantic because the National judges could not apply the
common law during the War of 1812. (See his passionate letters on the
subject, vol. IV, chap. I, of this work; and see his argument for the
common law, Story, I, 297-300; see also Peters to Pickering, Dec. 5,
1807, March 30, and April 14, 1816, Pickering MSS. Mass. Hist. Soc.)

[90] The opinion of Justice Chase, of the Supreme Court of Philadelphia,
sitting with Peters, District Judge, in the case of the United States
_vs._ Robert Worral, indicted under the common law for attempting to
bribe a United States officer. Justice Chase held that English common
law was not a part of the jurisprudence of the United States as a
Nation. (Wharton: _State Trials_, 189-99.)

[91] This was notably true of Justice James Wilson, of the Supreme
Court, and Alexander Addison, President Judge of the Fifth Pennsylvania
(State) Circuit, both of whom were born and educated in the United
Kingdom. They were two of the ablest and most learned men on the bench
at that period.

[92] Message of Governor John Tyler, Dec. 3, 1810, Tyler: _Letters and
Times of the Tylers_, I, 261; and see Tyler to Monroe, Dec. 4, 1809,
_ib._ 232.

[93] Jefferson to Randolph, Aug. 18, 1799, _Works_: Ford, IX, 73.

[94] See vol. II, chaps. X and XI, of this work.

[95] The National judges, in their charges to grand juries, lectured and
preached on religion, on morality, on partisan politics.

"On Monday last the Circuit Court of the United States was opened in
this town. The Hon. Judge Patterson ... delivered a most elegant and
appropriate charge.

"The _Law_ was laid down in a masterly manner: _Politics_ were set in
their true light by holding up the Jacobins [Republicans] as the
disorganizers of our happy country, and the only instruments of
introducing discontent and dissatisfaction among the well meaning part
of the community. _Religion & Morality_ were pleasingly inculcated and
enforced as being necessary to good government, good order, and good
laws; for 'when the righteous [Federalists] are in authority, the people
rejoice.'...

"After the charge was delivered the Rev. Mr. Alden addressed the Throne
of Grace in an excellent and well adapted prayer." (_United States
Oracle of the Day_, May 24, 1800, as quoted by Hackett, in _Green Bag_,
II, 264.)

[96] Adams's War Speech of 1798; see vol. II, 351, of this work.

[97] Wharton: _State Trials_, 333-34.

[98] _Ib._ 339.

[99] _Ib._ 337. Paterson sat with District Judge Hitchcock and delivered
the charge in this case. Luther Martin in the trial of Justice Chase
(see _infra_, chap. IV) said that Paterson was "mild and amiable," and
noted for his "suavity of manners." (_Trial of the Hon. Samuel Chase_:
Evans, stenographer, 187-88.)

[100] See Lyon to Mason, Oct. 14, 1798, Wharton: _State Trials_, 339-41.

[101] Jefferson to Taylor, Nov. 26, 1798, Jefferson MSS. Lib. Cong.

[102] Wharton: _State Trials_, 684.

[103] _Ib._ 685.

[104] _Ib._ 685-86.

[105] Wharton: _State Trials_, 661-62. Cooper was referring to the case
of Jonathan Robins. (See vol. II, 458-75, of this work.)

[106] Cooper afterward became a State judge.

[107] See _infra_, chap. VIII.

[108] Wharton: _State Trials_, 679. Stephen Girard paid Cooper's fine.
(McMaster: _Life and Times of Stephen Girard_, I, 397-98.)

[109] Wharton: _State Trials_, 466-69.

[110] See vol. II, 429 _et seq._ of this work.

[111] Wharton: _State Trials_, 598-609.

[112] For sketch of Lewis see Wharton: _State Trials_, 32-33.

[113] _Independent Chronicle_, Boston, May 12, 1800.

[114] Wharton: _State Trials_, 641 et seq.

[115] See vol. II, 429 _et seq._ of this work.

[116] Jefferson to Mason, Oct. 11, 1798, _Works_: Ford, VIII, 449-50;
same to Callender, Sept. 6, 1799, _ib._ IX, 81-82; same to same, Oct. 6,
1799, _ib._ 83-84; Pickering to Higginson, Jan. 6, 1804, Pickering MSS.
Mass. Hist. Soc.

[117] War speech of Adams to Congress in 1798, see vol. II, 351, of this
work.

[118] Testimony of James Winchester (_Annals_, 8th Cong. 2d Sess.
246-47); of Luther Martin (_ib._ 245-46); and of John T. Mason (_ib._
216); see also _Chase Trial_, 63.

[119] Testimony of James Triplett, _Chase Trial_, 44-45, and see
_Annals_, 8th Cong. 2d Sess. 217-19.

[120] Jefferson to Monroe, May 26, 1800, _Works_: Ford, IX, 136. By
"public interference" Jefferson meant an appropriation by the Virginia
Legislature. (_Ib._ 137.)

[121] The trial of Aaron Burr, see _infra_, chaps. VI, VII, VIII, and
IX.

[122] See testimony of George Hay,_ Annals_, 8th Cong. 2d Sess. 203; and
see especially Luther Martin's comments thereon, _infra_, chap. IV.

[123] The public mind was well prepared for just such appeals as those
that Hay and Wirt planned to make. For instance, the citizens of
Caroline County subscribed more than one hundred dollars for Callender's
use.

The subscription paper, probably drawn by Colonel John Taylor, in whose
hands the money was placed, declared that Callender "has a cause closely
allied to the preservation of the Constitution, and to the freedom of
public opinion; and that he ought to be comforted in his bonds."

Callender was "a sufferer for those principles." Therefore, and "because
also he is poor and has three infant children who live by his daily
labor" the contributors freely gave the money "to be applied to the use
of James T. Callender, and if he should die in prison, to the use of his
children." (_Independent Chronicle_, Boston, July 10, 1800.)

[124] See _infra_, chap. IV.

[125] Wharton: _State Trials_, 692.

[126] _Ib._ 696-98; and see testimony of Taylor, _Chase Trial_, 38-39.

[127] Wharton: _State Trials_, 717-18. Chase's charge to the jury was an
argument that the constitutionality of a law could not be determined by
a jury, but belonged exclusively to the Judicial Department. For a brief
_précis_ of this opinion see chap. III of this volume. Chase advanced
most of the arguments used by Marshall in Marbury _vs._ Madison.

[128] _Ib._ 718. When Jefferson became President he immediately pardoned
Callender. (See next chapter.)

[129] Wharton: _State Trials_, footnote to 718.

[130] See testimonies of Gunning Bedford, Nicholas Vandyke, Archibald
Hamilton, John Hall, and Samuel P. Moore, _Chase Trial_, 98-101.

[131] For example, one Charles Holt, publisher of a newspaper, _The
Bee_, of New London, Connecticut, had commented on the uselessness of
enlisting in the army, and reflected upon the wisdom of the
Administration's policy; for this he was indicted, convicted, and
sentenced to three months' imprisonment, and the payment of a fine of
two hundred dollars. (Randall: _Life of Thomas Jefferson_, II, 418.)

When President Adams passed through Newark, New Jersey, the local
artillery company fired a salute. One of the observers, a man named
Baldwin, idly remarked that "he wished the wadding from the cannon had
been lodged in the President's backside." For this seditious remark
Baldwin was fined one hundred dollars. (Hammond: _History of Political
Parties in the State of New York_, I, 130-31.)

One Jedediah Peck, Assemblyman from Otsego County, N.Y., circulated
among his neighbors a petition to Congress to repeal the Alien and
Sedition Laws. This shocking act of sedition was taken up by the United
States District Attorney for New York, who procured the indictment of
Peck; and upon bench warrant, the offender was arrested and taken to New
York for trial. It seems that such were the demonstrations of the
people, wherever Peck appeared in custody of the officer, that the case
was dropped. (Randall, II, 420.)

[132] They were supposed to select juries according to the laws of the
States where the courts were held. As a matter of fact they called the
men they wished to serve.

[133] McMaster: _History of the People of the United States_, II, 473;
and see speech of Charles Pinckney in the Senate, March 5, 1800,
_Annals_, 6th Cong. 1st and 2d Sess. 97.

[134] See speech of Bacon in the _Independent Chronicle_, Feb. 11-14,
1799; and of Hill, _ib._ Feb. 25, 1799.

[135] _Columbian Centinel_, Feb. 16, 1799; also see issue of Jan. 23,
1799. For condensed account of this incident see Anderson in _Am. Hist.
Rev._ V, 60-62, quoting the _Centinel_ as cited. A Federalist mob stoned
the house of Dr. Hill the night after he made this speech. (_Ib._) See
also _infra_, chap. III.

[136] _Independent Chronicle_, Feb. 18, 1799.

[137] _Columbian Centinel_, March 30, 1799. The attorneys for Adams also
advanced the doctrines of the Kentucky and Virginia Resolutions, so far,
at least, as to assert that any State ought to protest against and
resist any act of Congress that the Commonwealth believed to be in
violation of the National Constitution. (Anderson, in _Am. Hist. Rev._
V, 226-27.)

[138] _Columbian Centinel_, March 27, 1799.

Another instance of intolerant and partisan prosecutions in State courts
was the case of Duane and others, indicted and tried for getting
signatures to a petition in Congress against the Alien and Sedition
Laws. They were acquitted, however. (Wharton: _State Trials_, 345-89.)

[139] These charges of Judge Addison were, in reality, political
pamphlets. They had not the least reference to any business before the
court, and were no more appropriate than sermons. They were, however,
written with uncommon ability. It is doubtful whether any arguments more
weighty have since been produced against what George Cabot called
"excessive democracy." These grand jury charges of Addison were
entitled: "Causes and Error of Complaints and Jealousy of the
Administration of the Government"; "Charges to the Grand Juries of the
County Court of the Fifth Circuit of the State of Pennsylvania, at
December Session, 1798"; "The Liberty of Speech and of the Press";
"Charge to Grand Juries, 1798"; "Rise and Progress of Revolution," and
"A Charge to the Grand Juries of the State of Pennsylvania, at December
Session, 1800."

[140] Coulter _vs._ Moore, for defamation. Coulter, a justice of the
peace, sued Moore for having declared, in effect, that Coulter "kept a
house of ill fame." (_Trial of Alexander Addison, Esq._: Lloyd,
stenographer, 38; also Wharton: _State Trials_, 32 _et seq._)

[141] This judge was John C. B. Lucas. He was a Frenchman speaking
broken English, and, judging from the record, was a person of very
inferior ability. There seems to be no doubt that he was the mere tool
of another judge, Hugh H. Brackenridge, who hated Addison virulently.
From a study of the case, one cannot be surprised that the able and
erudite Addison held in greatest contempt the fussy and ignorant Lucas.

[142] Wharton: _State Trials_, 45; Carson: _Supreme Court of the United
States, Its History_, I, 193.

[143] The uprising against the Judiciary naturally began in Pennsylvania
where the extravagance of the judges had been carried to the most
picturesque as well as obnoxious extremes. For a faithful narrative of
these see McMaster: _U.S._ III, 153-55.

On the other hand, wherever Republicans occupied judicial positions, the
voice from the bench, while contrary to that of the Federalist judges,
was no less harsh and absolute.

For instance, the judges of the Supreme Court of New Hampshire refused
to listen to the reading of British law reports, because they were from
"musty, old, worm-eaten books." One of the judges declared that "not
Common Law--not the quirks of Coke and Blackstone--but common sense"
controlled American judges. (Warren, 227.)

[144] See next chapter.

[145] See _infra_, chap. III, for a résumé of the conditions that forced
Marshall to pronounce his famous opinion in the case of Marbury _vs._
Madison, as well as for a full discussion of that controversy.




CHAPTER II

THE ASSAULT ON THE JUDICIARY

    The angels of destruction are making haste. Our judges are to be
    as independent as spaniels. (Fisher Ames.)

    The power which has the right of passing, without appeal, on the
    validity of your laws, is your sovereign. (John Randolph.)


On January 6, 1802, an atmosphere of intense but suppressed excitement
pervaded the little semi-circular room where the Senate of the United
States was in session.[146] The Republican assault upon the Judiciary
was about to begin and the Federalists in Congress had nerved themselves
for their last great fight. The impending debate was to prove one of the
permanently notable engagements in American legislative history and was
to create a situation which, in a few months, forced John Marshall to
pronounce the first of those fundamental opinions which have helped to
shape and which still influence the destiny of the American Nation.

The decision of Marbury _vs._ Madison was to be made inevitable by the
great controversy to which we are now to listen. Marshall's course, and,
indeed, his opinion in this famous case, cannot be understood without a
thorough knowledge of the notable debate in Congress which immediately
preceded it.[147]

Never was the effect of the long years of party training which
Jefferson had given the Republicans better manifested than now. There
was unsparing party discipline, perfect harmony of party plan. The
President himself gave the signal for attack, but with such skill that
while his lieutenants in House and Senate understood their orders and
were eager to execute them, the rank and file of the Federalist voters,
whom Jefferson hoped to win to the Republican cause in the years to
come, were soothed rather than irritated by the seeming moderation and
reasonableness of the President's words.

"The Judiciary system ... and especially that portion of it recently
enacted, will, of course, present itself to the contemplation of
Congress," was the almost casual reference in the President's first
Message to the Republican purpose to subjugate the National Judiciary.
To assist Senators and Representatives in determining "the proportion
which the institution bears to the business it has to perform" Jefferson
had "procured from the several states ... an exact statement of all the
causes decided since the first establishment of the courts and of the
causes which were pending when additional courts and judges were brought
to their aid." This summary he transmitted to the law-making body.

In a seeming spirit of impartiality, almost of indifference, the
President suggested Congressional inquiry as to whether jury trials had
not been withheld in many cases, and advised the investigation of the
manner of impaneling juries.[148]

Thus far and no farther went the comments on the National Judiciary
which the President laid before Congress. The status of the courts--a
question that filled the minds of all, both Federalists and
Republicans--was not referred to. But the thought of it thrilled
Jefferson, and only his caution restrained him from avowing it. Indeed,
he had actually written into the message words as daring as those of his
cherished Kentucky Resolutions; had boldly declared that the right
existed in each department "to decide on the validity of an act
according to its own judgment and uncontrolled by the opinions of any
other department"; had asserted that he himself, as President, had the
authority and power to decide the constitutionality of National laws;
and had, as President, actually pronounced, in official form, the
Sedition Act to be "in palpable and unqualified contradiction to the
Constitution."[149]

This was not merely a part of a first rough draft of this Presidential
document, nor was it lightly cast aside. It was the most important
paragraph of the completed Message. Jefferson had signed it on December
8, 1801, and it was ready for transmission to the National Legislature.
But just before sending the Message to the Capitol, he struck out this
passage,[150] and thus notes on the margin of the draft his reason for
doing so: "This whole paragraph was omitted as capable of being
chicaned, and furnishing something to the opposition to make a handle
of. It was thought better that the message should be clear of
everything which the public might be made to misunderstand."

Although Jefferson's programme, as stated in the altered message which
he finally sent to Congress, did not arouse the rank and file of
Federalist voters, it did alarm and anger the Federalist chieftains, who
saw the real purpose back of the President's colorless words. Fisher
Ames, that delightful reactionary, thus interpreted it: "The message
announces the downfall of the late revision of the Judiciary; economy,
the patriotism of the shallow and the trick of the ambitious.... The U.
S. Gov't ... is to be dismantled like an old ship.... The state gov'ts
are to be exhibited as alone safe and salutary."[151]

The Judiciary Law of 1801, which the Federalist majority enacted before
their power over legislation passed forever from their hands, was one of
the best considered and ablest measures ever devised by that
constructive party.[152] Almost from the time of the organization of the
National Judiciary the National judges had complained of the inadequacy
and positive evils of the law under which they performed their duties.
The famous Judiciary Act of 1789, which has received so much undeserved
praise, did not entirely satisfy anybody except its author, Oliver
Ellsworth. "It is a child of his and he defends it ... with wrath and
anger," wrote Maclay in his diary.[153]

In the first Congress opposition to the Ellsworth Act had been sharp and
determined. Elbridge Gerry denounced the proposed National Judiciary as
"a tyranny."[154] Samuel Livermore of New Hampshire called it "this new
fangled system" which "would ... swallow up the State Courts."[155]
James Jackson of Georgia declared that National courts would cruelly
harass "the poor man."[156] Thomas Sumter of South Carolina saw in the
Judiciary Bill "the iron hand of power."[157] Maclay feared that it
would be "the gunpowder plot of the Constitution."[158]

When the Ellsworth Bill had become a law, Senator William Grayson of
Virginia advised Patrick Henry that it "wears so monstrous an appearance
that I think it will be _felo-de-se_ in the execution.... Whenever the
Federal Judiciary comes into operation, ... the pride of the states ...
will in the end procure its destruction"[159]--a prediction that came
near fulfillment and probably would have been realized but for the
courage of John Marshall.

While Grayson's eager prophecy did not come to pass, the Judiciary Act
of 1789 worked so badly that it was a source of discontent to bench,
bar, and people. William R. Davie of North Carolina, a member of the
Convention that framed the Constitution and one of the most eminent
lawyers of his time, condemned the Ellsworth Act as "so defective ...
that ... it would disgrace the composition of the meanest legislature of
the States."[160]

It was, as we have seen,[161] because of the deficiencies of the
original Judiciary Law that Jay refused reappointment as Chief Justice.
"I left the bench," he wrote Adams, "perfectly convinced that under a
system so defective it would not obtain the energy, weight, and dignity
which are essential to its affording due support to the national
government, nor acquire the public confidence and respect which, as the
last resort of the justice of the nation, it should possess."[162]

The six Justices of the Supreme Court were required to hold circuit
courts in pairs, together with the judge of the district in which the
court was held. Each circuit was to be thus served twice every year, and
the Supreme Court was to hold two sessions annually in Washington.[163]
So great were the distances between places where courts were held, so
laborious, slow, and dangerous was all travel,[164] that the
Justices--men of ripe age and studious habits--spent a large part of
each year upon the road.[165] Sometimes a storm would delay them, and
litigants with their assembled lawyers and witnesses would have to
postpone the trial for another year or await, at the expense of time and
money, the arrival of the belated Justices.[166]

A graver defect of the act was that the Justices, sitting together as
the Supreme Court, heard on appeal the same causes which they had
decided on the Circuit Bench. Thus, in effect, they were trial and
appellate judges in identical controversies. Moreover, by the rotation
in riding circuits different judges frequently heard the same causes in
their various stages, so that uniformity of practice, and even of
decisions, was made impossible.

The admirable Judiciary Act, passed by the Federalists in 1801,
corrected these defects. The membership of the Supreme Court was reduced
to five after the next vacancy, the Justices were relieved of the heavy
burden of holding circuit courts, and their duties were confined
exclusively to the Supreme Bench. The country was divided into sixteen
circuits, and the office of circuit judge was created for each of
these. The Circuit Judge, sitting with the District Judge, was to hold
circuit court, as the Justices of the Supreme Court had formerly done.
Thus the prompt and regular sessions of the circuit courts were assured.
The appeal from decisions rendered by the Supreme Court Justices,
sitting as circuit judges, to the same men sitting as appellate judges,
was done away with.[167]

In establishing these new circuits and creating these circuit judges,
this excellent Federalist law gave Adams the opportunity to fill the
offices thus created with stanch Federalist partisans. Indeed, this was
one motive for the enactment of the law. The salaries of the new circuit
judges, together with other necessary expenses of the remodeled system,
amounted to more than fifty thousand dollars every year--a sum which the
Republicans exaggerated in their appeals to the people and even in their
arguments in Congress.[168]

Chiefly on the pretext of this alleged extravagance, but in reality to
oust the newly appointed Federalist judges and intimidate the entire
National Judiciary, the Republicans, led by Jefferson, determined to
repeal the Federalist Judiciary Act of 1801, upon the faith in the
passage of which John Marshall, with misgiving, had accepted the office
of Chief Justice.

On January 6, 1802, Senator John Breckenridge of Kentucky pulled the
lanyard that fired the opening gun.[169] He was the personification of
anti-Nationalism and aggressive democracy. He moved the repeal of the
Federalist National Judiciary Act of 1801.[170] Every member of Senate
and House--Republican and Federalist--was uplifted or depressed by the
vital importance of the issue thus brought to a head; and in the debate
which followed no words were too extreme to express their consciousness
of the gravity of the occasion.[171]

In opening the debate, Senator Breckenridge confined himself closely to
the point that the new Federalist judges were superfluous. "Could it be
necessary," he challenged the Federalists, "to _increase_ courts when
suits were _decreasing_? ... to multiply judges, when their duties were
diminishing?" No! "The time never will arrive when America will stand in
need of thirty-eight Federal Judges."[172] The Federalist Judiciary Law
was "a wanton waste of the public treasure."[173] Moreover, the fathers
never intended to commit to National judges "subjects of litigation
which ... could be left to State Courts." Answering the Federalist
contention that the Constitution guaranteed to National judges tenure of
office during "good behavior" and that, therefore, the offices once
established could not be destroyed by Congress, the Kentucky Senator
observed that "sinecure offices, ... are not permitted by our laws or
Constitution."[174]

James Monroe, then in Richmond, hastened to inform Breckenridge that
"your argument ... is highly approved here." But, anxiously inquired
that foggy Republican, "Do you mean to admit that the legislature
[Congress] has not a right to repeal the law organizing the supreme
court for the express purpose of dismissing the judges when they cease
to possess the public confidence?" If so, "the people have no check
whatever on them ... but impeachment." Monroe hoped that "the period is
not distant" when any opposition to "the sovereignty of the people" by
the courts, such as "the application of the principles of the English
common law to our constitution," would be considered "good cause for
impeachment."[175] Thus early was expressed the Republican plan to
impeach and remove Marshall and the entire Federal membership of the
Supreme Court so soon to be attempted.[176]

In reply to Breckenridge, Senator Jonathan Mason of Massachusetts, an
accomplished Boston lawyer, promptly brought forward the question in the
minds of Congress and the country. "This," said he, "was one of the most
important questions that ever came before a Legislature." Why had the
Judiciary been made "as independent of the Legislature as of the
Executive?" Because it was their duty "to expound not only the laws, but
the Constitution also; in which is involved the power of checking the
Legislature in case it should pass any laws in violation of the
Constitution."[177]

The old system which the Republicans would now revive was intolerable,
declared Senator Gouverneur Morris of New York. "Cast an eye over the
extent of our country" and reflect that the President, "in selecting a
character for the bench, must seek less the learning of a judge than the
agility of a post boy." Moreover, to repeal the Federal Judiciary Law
would be "a declaration to the remaining judges that they hold their
offices subject to your [Congress's] will and pleasure." Thus "the check
established by the Constitution is destroyed."

[Illustration]

Morris expounded the conservative Federalist philosophy thus:
"Governments are made to provide against the follies and vices of
men.... Hence, checks are required in the distribution of power among
those who are to exercise it for the benefit of the people." The most
efficient of these checks was the power given the National Judiciary--"a
check of the first necessity, to prevent an invasion of the Constitution
by unconstitutional laws--a check which might prevent any faction from
intimidating or annihilating the tribunals themselves."[178]

Let the Republican Senators consider where their course would end, he
warned. "What has been the ruin of every Republic? The vile love of
popularity. _Why are we here? To save the people from their most
dangerous enemy; to save them from themselves_."[179] Do not, he
besought, "commit the fate of America to the mercy of time and
chance."[180]

"Good God!" exclaimed Senator James Jackson of Georgia, "is it possible
that I have heard such a sentiment in this body? Rather should I have
expected to have heard it sounded from the despots of Turkey, or the
deserts of Siberia.[181]... I am more afraid of an army of judges, ...
than of an army of soldiers.... Have we not seen sedition laws?" The
Georgia Senator "thanked God" that the terrorism of the National
Judiciary was, at last, overthrown. "That we are not under dread of the
patronage of judges, is manifest, from their attack on the Secretary of
State."[182]

Senator Uriah Tracy of Connecticut was so concerned that he spoke in
spite of serious illness. "What security is there to an individual," he
asked, if the Legislature of the Union or any particular State, should
pass an _ex post facto_ law? "None in the world" but revolution or "an
appeal to the Judiciary of the United States, where he will obtain a
decision that the law itself is unconstitutional and void."[183]

That typical Virginian, Senator Stevens Thompson Mason, able, bold, and
impetuous, now took up Gouverneur Morris's gage of battle. He was one of
the most fearless and capable men in the Republican Party, and was as
impressive in physical appearance as he was dominant in character. He
was just under six feet in height, yet heavy with fat; he had
extraordinarily large eyes, gray in color, a wide mouth with lips
sternly compressed, high, broad forehead, and dark hair, thrown back
from his brow. Mason had "wonderful powers of sarcasm" which he employed
to the utmost in this debate.[184]

It was true, he said, in beginning his address, that the Judiciary
should be independent, but not "independent of the nation itself."
Certainly the Judiciary had not Constitutional authority "to control the
other departments of the Government."[185] Mason hotly attacked the
Federalist position that a National judge, once appointed, was in office
permanently; and thus, for the second time, Marbury _vs._ Madison was
brought into the debate. "Have we not heard this doctrine supported in
the memorable case of the mandamus, lately[186] before the Supreme
Court? Was it not there said [in argument of counsel] that, though the
law had a right to establish the office of a justice of the peace, yet
it had not a right to abridge its duration to five years?"[187]

The true principle, Mason declared, was that judicial offices like all
others "are made for the good of the people and not for that of the
individual who administers them." Even Judges of the Supreme Court
should do something to earn their salaries; but under the Federalist
Judiciary Act of 1801 "what have they got to do? To try ten suits,
[annually] for such is the number now on their docket."

Mason now departed slightly from the Republican programme of ignoring
the favorite Federalist theory that the Judiciary has the power to
decide the constitutionality of statutes. He fears that the Justices of
the Supreme Court "will be induced, from want of employment, to do that
which they ought not to do.... They may ... hold the Constitution in one
hand, and the law in the other, and say to the departments of
Government, so far shall you go and no farther." He is alarmed lest
"this independence of the Judiciary" shall become "something like
supremacy."[188]

Seldom in parliamentary contests has sarcasm, always a doubtful weapon,
been employed with finer art than it was by Mason against Morris at this
time. The Federalists, in the enactment of the Judiciary Act of 1801,
had abolished two district courts--the very thing for which the
Republicans were now assailed by the Federalists as destroyers of the
Constitution. Where was Morris, asked Mason, when his friends had
committed that sacrilege? "Where was the _Ajax Telamon_ of his party" at
that hour of fate? "Where was the hero with his seven-fold shield--not
of bull's hide, but of brass--prepared to prevent or to punish this
Trojan rape?"[189]

Morris replied lamely. He had been criticized, he complained, for
pointing out "the dangers to which popular governments are exposed, from
the influence of designing demagogues upon popular passion." Yet "'tis
for these purposes that all our Constitutional checks are devised."
Otherwise "the Constitution is all nonsense." He enumerated the
Constitutional limitations and exclaimed, "Why all these multiplied
precautions, unless to check and control that impetuous spirit ... which
has swept away every popular Government that ever existed?"[190]

Should all else fail, "the Constitution has given us ... an independent
judiciary" which, if "you trench upon the rights of your fellow
citizens, by passing an unconstitutional law ... will stop you short."
Preserve the Judiciary in its vigor, and in great controversies where
the passions of the multitude are aroused, "instead of a resort to arms,
there will be a happier appeal to argument."[191]

Answering Mason's fears that the Supreme Court, "having little else to
do, would do mischief," Morris avowed that he should "rejoice in that
mischief," if it checked "the Legislative or Executive departments in
any wanton invasion of our rights.... I know this doctrine is
unpleasant; I know it is more popular to appeal to public opinion--that
equivocal, transient being, which exists nowhere and everywhere. But if
ever the occasion calls for it, I trust the Supreme Court will not
neglect doing the great mischief of saving this Constitution."[192]

His emotions wrought to the point of oratorical ecstasy, Morris now made
an appeal to "the good sense, patriotism, and ... virtue" of the
Republic, in the course of which he became badly entangled in his
metaphors. "Do not," he pleaded, "rely on that popular will, which has
brought us frail beings into political existence. That opinion is but a
changeable thing. It will soon change. This very measure will change it.
You will be deceived. Do not ... commit the dignity, the harmony, the
existence of our nation to the wild wind. Trust not your treasure to the
waves. Throw not your compass and your charts into the ocean. Do not
believe that its billows will waft you into port. Indeed, indeed, you
will be deceived.

"Cast not away this only anchor of our safety. I have seen its progress.
I know the difficulties through which it was obtained. I stand in the
presence of Almighty God, and of the world; and I declare to you, that
if you lose this charter, never, no, never will you get another! We are
now, perhaps, arrived at the parting point. Here, even here, we stand on
the brink of fate. Pause--Pause! For Heaven's sake, pause!"[193]

Senator Breckenridge would not "pause." The "progress" of Senator
Morris's "anchor," indeed, dragged him again to "the brink of fate." The
Senate had "wandered long enough" with the Federalist Senators "in
those regions of fancy and of terror, to which they [have] led us." He
now insisted that the Senate return to the real subject, and in a speech
which is a model of compact reasoning, sharpened by sarcasm, discussed
all the points raised by the Federalist Senators except their favorite
one of the power of the National Judiciary to declare acts of Congress
unconstitutional. This he carefully avoided.[194]

On January 15, 1802, the new Vice-President of the United States, Aaron
Burr, first took the chair as presiding officer of the Senate.[195]
Within two weeks[196] an incident happened which, though seemingly
trivial, was powerfully and dramatically to affect the course of
political events that finally encompassed the ruin of the reputation,
career, and fortune of many men.

Senator Jonathan Dayton of New Jersey, in order, as he claimed, to make
the measure less objectionable, moved that "the bill be referred to a
select committee, with instructions to consider and report the
alterations which may be proper in the judiciary system of the United
States."[197] On this motion the Senate tied; and Vice-President Burr,
by his deciding vote, referred the bill to the select committee. In
doing this he explained that he believed the Federalists sincere in
their wish "to ameliorate the provisions of the bill, that it might be
rendered more acceptable to the Senate." But he was careful to warn
them that he would "discountenance, by his vote, any attempt, if any
such should be made, that might, in an indirect way, go to defeat the
bill."[198]

Five days later, one more Republican Senator, being present, and one
Federalist Senator, being absent, the committee was discharged on motion
of Senator Breckenridge; and the debate continued, the Federalists
constantly accusing the Republicans of a purpose to destroy the
independence of the National Judiciary, and asserting that National
judges must be kept beyond the reach of either Congress or President in
order to decide fearlessly upon the constitutionality of laws.

At last the steady but spirited Breckenridge was so irritated that he
broke away from the Republican plan to ignore this principal article of
Federalist faith. He did not intend to rise again, he said, but "an
argument had been so much pressed" that he felt it must be answered. "I
did not expect, sir, to find the doctrine of the power of the courts to
annul the laws of Congress as unconstitutional, so seriously insisted
on.... I would ask where they got that power, and who checks the courts
when they violate the Constitution?"

The theory that courts may annul legislation would give them "the
absolute direction of the Government." For, "to whom are they
responsible?" He wished to have pointed out the clause which grants to
the National Judiciary the power to overthrow legislation. "Is it not
extraordinary," said he, "that if this high power was intended, it
should nowhere appear?... Never were such high and transcendant powers
in any Government (much less in one like ours, composed of powers
specially given and defined) claimed or exercised by construction
only."[199]

Breckenridge frankly stated the Republican philosophy, repeating
sometimes word for word the passage which Jefferson at the last moment
had deleted from his Message to Congress.[200] "The Constitution," he
declared, "intended a separation of the powers vested in the three great
departments, giving to each exclusive authority on the subjects
committed to it.... Those who made the laws are presumed to have an
equal attachment to, and interest in the Constitution; are equally bound
by oath to support it, and have an equal right to give a construction to
it.... The construction of one department of the powers vested in it, is
of higher authority than the construction of any other department.

"The Legislature," he continued, "have the exclusive right to interpret
the Constitution, in what regards the law-making power, and the judges
are bound to execute the laws they make. For the Legislature would
have at least an equal right to annul the decisions of the courts,
founded on their construction of the Constitution, as the courts
would have to annul the acts of the Legislature, founded on their
construction.[201]... In case the courts were to declare your revenue,
impost and appropriation laws unconstitutional, would they thereby be
blotted out of your statute book, and the operations of Government
arrested?... Let gentlemen consider well before they insist on a power
in the Judiciary which places the Legislature at their feet."[202]

The candles[203] now dimly illuminating the little Senate Chamber shed
scarcely more light than radiated from the broad, round, florid face of
Gouverneur Morris. Getting to his feet as quickly as his wooden leg
would permit, his features beaming with triumph, the New York Senator
congratulated "this House, and all America, that we have at length got
our adversaries upon the ground where we can fairly meet."[204]

The power of courts to declare legislation invalid is derived from
"authority higher than this Constitution ... from the constitution of
man, from the nature of things, from the necessary progress of human
affairs,"[205] he asserted. In a cause on trial before them, it becomes
necessary for the judges to "declare what the law is. They must, of
course, determine whether that which is produced and relied on, has
indeed the binding force of law."

Suppose, said Morris, that Congress should pass an act forbidden by the
Constitution--for instance, one laying "a duty on exports," and "the
citizen refuses to pay." If the Republicans were right, the courts would
enforce a collection. In vain would the injured citizen appeal to the
Supreme Court; for Congress would "defeat the appeal, and render final
the judgment of inferior tribunals, subjected to their absolute
control." According to the Republican doctrine, "the moment the
Legislature ... declare themselves supreme, they become so ... and the
Constitution is whatever they choose to make it."[206] This time Morris
made a great impression. The Federalists were in high feather; even the
Republicans were moved to admiration. Troup reported to King that "the
democratical paper at Washington pronounced his speech to be the
greatest display of eloquence ever exhibited in a deliberative
assembly!"[207]

Nevertheless, the Federalist politicians were worried by the apparent
indifference of the rank and file of their party. "I am surprized,"
wrote Bayard, "at the public apathy upon the subject. Why do not those
who are opposed to the project, express in the public papers or by
petitions their disapprobation?... It is likely that a public movement
would have great effect."[208] But, thanks to the former conduct of the
judges themselves, no "public movement" developed. Conservative citizens
were apprehensive; but, as usual, they were lethargic.

On February 3, 1802, the Senate, by a strictly party vote[209] of 16 to
15, passed the bill to repeal the Federalist Judiciary Act of 1801.[210]

When the bill came up in the House, the Federalist leader in that body,
James A. Bayard of Delaware, moved to postpone its consideration to the
third Monday in March, in order, as he said, to test public opinion,
because "few occasions have occurred so important as this."[211] But in
vain did the Federalists plead and threaten. Postponement was refused by
a vote of 61 to 35.[212] Another plea for delay was denied by a vote of
58 to 34.[213] Thus the solid Republican majority, in rigid pursuance of
the party plan, forced the consideration of the bill.

The Federalist organ in Washington, which Marshall two years earlier was
supposed to influence and to which he probably contributed,[214] saw
little hope of successful resistance. "What will eventually be the issue
of the present high-handed, overbearing proceedings of Congress it is
impossible to determine," but fear was expressed by this paper that
conditions would be created "which impartial, unbiased and reflecting
men consider as immediately preceding the total destruction of our
government and the introduction of disunion, anarchy and civil
war."[215]

This threat of secession and armed resistance, already made in the
Senate, was to be repeated three times in the debate in the House which
was opened for the Federalists by Archibald Henderson of North Carolina,
whom Marshall pronounced to be "unquestionably among the ablest lawyers
of his day" and "one of the great lawyers of the Nation."[216] "The
monstrous and unheard of doctrine ... lately advanced, that the judges
have not the right of declaring unconstitutional laws void," was,
declared Henderson, "the very definition of tyranny, and wherever you
find it, the people are slaves, whether they call their Government a
Monarchy, Republic, or Democracy." If the Republican theory of the
Constitution should prevail, "better at once to bury it with all our
hopes."[217]

Robert Williams of the same State, an extreme but unskillful Republican,
now uncovered his party's scheme to oust Federalist judges, which thus
far had carefully been concealed:[218] "Agreeably to our Constitution a
judge may be impeached," said he, but this punishment would be minimized
if judges could declare an act of Congress unconstitutional. "However he
may err, he commits no crime; how, then, can he be impeached?"[219]

Philip R. Thompson of Virginia, a Republican, was moved to the depths of
his being: "Give the Judiciary this check upon the Legislature, allow
them the power to declare your laws null and void, ... and in vain have
the people placed you upon this floor to legislate.[220]... This is the
tree where despotism lies concealed.... Nurture it with your treasure,
stop not its ramifications, and ... your atmosphere will be contaminated
with its poisonous effluvia, and your soaring eagle will fall dead at
its root."[221]

Thomas T. Davis of Kentucky, deeply stirred by this picture, declared
that the Federalists said to the people, you are "incapable" of
protecting yourselves; "in the Judiciary alone you find a safe deposit
for your liberties." The Kentucky Representative "trembled" at such
ideas. "The sooner we put men out of power, who [_sic_] we find
determined to act in this manner, the better; by doing so we preserve
the power of the Legislature, and save our nation from the ravages of an
uncontrolled Judiciary."[222] Thus again was revealed the Republican
purpose of dragging from the National Bench all judges who dared assert
the right, and to exercise the power to declare an act of Congress
unconstitutional.[223]

The contending forces became ever more earnest as the struggle
continued. All the cases then known in which courts directly or by
inference had held legislative acts invalid were cited;[224] and all the
arguments that ever had been advanced in favor of the principle of the
judicial power to annul legislation were made over and over again.

All the reasons for the opinion which John Marshall, exactly one year
later, pronounced in Marbury _vs._ Madison were given during this
debate. Indeed, the legislative struggle now in progress and the result
of it, created conditions which forced Marshall to execute that judicial
_coup d'état_. It should be repeated that an understanding of Marbury
_vs._ Madison is impossible without a thorough knowledge of the debate
in Congress which preceded and largely caused that epochal decision.

The alarm that the repeal was but the beginning of Republican havoc was
sounded by every Federalist member. "This measure," said John Stanley of
North Carolina, "will be the first link in that chain of measures which
will add the name of America to the melancholy catalogue of fallen
Republics."[225]

William Branch Giles, who for the next five years bore so vital a part
in the stirring events of Marshall's life, now took the floor and made
one of the ablest addresses of his tempestuous career.[226] He was
Jefferson's lieutenant in the House.[227] When the Federalists tried to
postpone the consideration of the bill,[228] Giles admitted that it
presented a question "more important than any that ever came before
this house."[229] But there was no excuse for delay, because the press
had been full of it for more than a year and the public was thoroughly
informed upon it.[230]

Giles was a large, robust, "handsome" Virginian, whose lightest word
always compelled the attention of the House. He had a very dark
complexion, black hair worn long, and intense, "retreating" brown eyes.
His dress was "remarkably plain, and in the style of Virginia
carelessness." His voice was "clear and nervous," his language
"powerfully condensed."[231]

This Republican gladiator came boldly to combat. How had the Federalists
contrived to gain their ends? Chiefly by "the breaking out of a
tremendous and unprecedented war in Europe," which had worked upon "the
feelings and sympathies of the people of the United States" till they
had neglected their own affairs. So it was, he said, that the
Federalists had been able to load upon the people an expensive army, a
powerful navy, intolerable taxes, and the despotic Alien and Sedition
Laws. But at last, when, as the result of their maladministration, the
Federalists saw their doom approaching, they began to "look out for some
department of the government in which they could entrench themselves ...
and continue to support those favorite principles of irresponsibility
which they could never consent to abandon."

For this purpose they had selected the Judiciary Department: "Not only
because it was already filled" with rabid Federalists, "but because they
held their offices by indefinite tenures, and of course were further
removed from any responsibility to the people than either of the other
departments." Thus came the Federalist Judiciary Act of 1801 which the
Republicans were about to repeal.

Giles could not resist a sneer at Marshall. Referring to the European
war, to which "the feelings and sympathies of the people of the United
States were so strongly attracted ... that they considered their own
internal concerns in a secondary point of view," Giles swiftly portrayed
those measures used by the Federalists as a pretext. They had, jeered
the sharp-tongued Virginia Republican, "pushed forward the people to the
X, Y, Z, of their political alphabet, before they had well learned ...
the A, B, C, of the principles of the [Federalist] Administration."[232]

But now, when blood was no longer flowing on European battle-fields, the
interests of the American people in that "tremendous and unprecedented"
combat of nations "no longer turn their attention from their internal
concerns; arguments of the highest consideration for the safety of the
Constitution and the liberty of the citizens, no longer receive the
short reply, French partisans! Jacobins! Disorganizers!"[233] So "the
American people and their Congress, in their real persons, and original
American characters" were at last "engaged in the transaction of
American concerns."[234]

Federalist despotism lay prostrate, thank Heaven, beneath the conquering
Republican heel. Should it rise again? Never! Giles taunted the
Federalists with the conduct of Federalist judges in the sedition
cases,[235] and denounced the attempt to fasten British law on the
American Nation--a law "unlimited in its object, and indefinite in its
character," covering "every object of legislation."

Think, too, of what Marshall and the Supreme Court have done! "They have
sent a ... process leading to a mandamus, into the Executive cabinet, to
examine its concerns."[236] The real issue between Federalists and
Republicans, declared Giles, was "the doctrine of irresponsibility
against the doctrine of responsibility.... The doctrine of despotism in
opposition to the representative system." The Federalist theory was "an
express avowal that the people were incompetent to govern themselves."

A handsome, florid, fashionably attired man of thirty-five now took the
floor and began his reply to the powerful speech of the tempestuous
Virginian. His complexion and stoutness indicated the generous manner
in which all public men of the time lived, and his polished elocution
and lofty scorn for all things Republican marked him as the equal of
Gouverneur Morris in oratorical finish and Federalist distrust of the
people.[237] It was James A. Bayard, the Federalist leader of the House.

He asserted that the Republican "designs [were] hostile to the powers of
this government"; that they flowed from "state pride [which]
extinguishes a national sentiment"; that while the Federalists were in
charge of the National Administration they struggled "to maintain the
Constitutional powers of the Executive" because "the wild principles of
French liberty were scattered through the country. We had our Jacobins
and disorganizers, who saw no difference between a King and a President;
and, as the people of France had put down their King, they thought the
people of America ought to put down their President.

"They [Federalists] who considered the Constitution as securing all the
principles of rational and practicable liberty, who were unwilling to
embark upon the tempestuous sea of revolution, in pursuit of visionary
schemes, were denounced as monarchists. A line was drawn between the
Government and the people, and the friends of the Government
[Federalists] were marked as the enemies of the people."[238] This was
the spirit that was now triumphant; to what lengths was it to carry the
Republicans? Did they include the downfall of the Judiciary in their
plans of general destruction? Did they propose to make judges the mere
creatures of Congress?[239]

Bayard skillfully turned the gibe at Marshall into a tribute to the
Chief Justice. What did Giles mean by his cryptic X. Y. Z. reference?
"Did he mean that the dispatches ... were impostures?" Though Giles
"felt no respect" for Marshall or Pinckney--"two characters as pure, as
honorable, and exalted, as any the country can boast of"--yet, exclaimed
Bayard, "I should have expected that he would have felt some tenderness
for Mr. Gerry."[240]

The Republicans had contaminated the country with falsehoods against the
Federalist Administrations; and now the target of their "poisoned
arrows" was the National Judiciary. "If ... they [the judges] have
offended against the Constitution or laws of the country, why are they
not impeached? The gentleman now holds the sword of justice. The judges
are not a privileged order; they have no shelter but their
innocence."[241]

In detail Bayard explained the facts in the case of Marbury _vs._
Madison. That the Supreme Court had been "hardy enough to send their
mandate into the Executive cabinet"[242] was, said he, "a strong proof
of the value of that Constitutional provision which makes them
independent. They are not terrified by the frowns of Executive power,
and dare to judge between the rights of a citizen and the pretensions of
a President."[243]

Contrast the defects of the Judiciary Act of 1789 with the perfection of
the Federalist law supplanting it. Could any man deny the superiority of
the latter?[244] The truth was that the Republicans were "to give notice
to the judges of the Supreme Court of their fate, and to bid them to
prepare for their end."[245] In these words Bayard charged the
Republicans with their settled but unavowed purpose to unseat Marshall
and his Federalist associates.[246]

Bayard hotly denied the Republican accusation that President Adams had
appointed to the bench Federalist members of Congress as a reward for
their party services; but, retorted he, Jefferson had done that very
thing.[247] He then spoke at great length on the nature of the American
Judiciary as distinguished from that of British courts, gave a vivid
account of the passage of the Federalist Judiciary Act under attack, and
finally swung back to the subject which more and more was coming to
dominate the struggle--the power of the Supreme Court to annul acts of
Congress.

Again and again Bayard restated, and with power and eloquence, all the
arguments to support the supervisory power of courts over
legislation.[248] At last he threatened armed resistance if the
Republicans dared to carry out their plans against the National
Judiciary. "There are many now willing to spill their blood to defend
that Constitution. Are gentlemen disposed to risk the consequences?...
Let them consider their wives and children, their neighbors and their
friends." Destroy the independence of the National Judiciary and "the
moment is not far when this fair country is to be desolated by civil
war."[249]

Bayard's speech aroused great enthusiasm among the leaders of his party.
John Adams wrote: "Yours is the most comprehensive masterly and compleat
argument that has been published in either house and will have,
indeed ... has already had more effect and influence on the public mind
than all other publications on the subject."[250] The _Washington
Federalist_ pronounced Bayard's performance to be "far superior, not
only to ... the speeches of Mr. Morris and Mr. Tracy in the Senate, but
to any speech of a Demosthenes, a Cicero, or a Chatham."[251]

Hardly was Bayard's last word spoken when the man who at that time was
the Republican master of the House, and, indeed, of the Senate also, was
upon his feet. Of medium stature, thin as a sword, his straight black
hair, in which gray already was beginning to appear, suggesting the
Indian blood in his veins, his intense black eyes flaming with the
passion of combat, his high and shrilling voice suggesting the scream of
an eagle, John Randolph of Roanoke--that haughty, passionate, eccentric
genius--personified the aggressive and ruthless Republicanism of the
hour. He was clad in riding-coat and breeches, wore long riding-boots,
and if the hat of the Virginia planter was not on his head, it was
because in his nervousness he had removed it;[252] while, if his
riding-whip was not in his hand, it was on his desk where he had cast
it, the visible and fitting emblem of this strange man's mastery over
his partisan followers.[253]

"He did not rise," he said, his voice quivering and body trembling,[254]
"for the purpose of assuming the gauntlet which had been so proudly
thrown by the Goliah of the adverse party; not but that he believed even
his feeble powers, armed with the simple weapon of truth, a sling and a
stone, capable of prostrating on the floor that gigantic boaster, armed
cap-a-pie as he was." Randolph sneered, as only he could sneer, at the
unctuous claims of the Federalists, that they had "nobly sacrificed
their political existence on the altar of the general welfare"; he
refused "to revere in them the self-immolated victims at the shrine of
patriotism."[255]

As to the Federalist assertion that "the common law of England is the
law of the United States in their confederate capacity," Randolph
observed that the meaning of such terms as "court," "jury," and the like
must, of course, be settled by reference to common-law definitions, but
"does it follow that that indefinite and undefinable body of law is the
irrepealable law of the land? The sense of a most important phrase,
'direct tax,' as used in the Constitution, has been ... settled by the
acceptation of Adam Smith; an acceptation, too, peculiar to himself.
Does the Wealth of Nations, therefore, form a part of the Constitution
of the United States?"

And would the Federalists inform the House what phase of the common law
they proposed to adopt for the United States? Was it that "of the reign
of Elizabeth and James the first; or ... that of the time of George the
Second?" Was it that "of Sir Walter Raleigh and Captain Smith, or that
which was imported by Governor Oglethorpe?" Or was it that of some
intermediate period? "I wish especially to know," asked Randolph,
"whether the common law of libels which attaches to this Constitution,
be the doctrine laid down by Lord Mansfield, or that which has
immortalized Mr. Fox?" Let the Federalists reflect on the persecution
for libel that had been made under the common law, as well as under the
Sedition Act.[256]

Proper restraint upon Congress, said Randolph, was not found in a
pretended power of the Judiciary to veto legislation, but in the people
themselves, who at the ballot box could "apply the Constitutional
corrective. That is the true check; every other is at variance with the
principle that a free people are capable of self-government." Then the
imperious Virginian boldly charged that the Federalists intended to have
John Marshall and his associates on the Supreme Bench annul the
Republican repeal of the Federalist Judiciary Act.

"Sir," cried Randolph, "if you pass the law, the judges are to put their
veto upon it by declaring it unconstitutional. Here is a new power of a
dangerous and uncontrollable nature.... The decision of a Constitutional
question must rest somewhere. Shall it be confided to men immediately
responsible to the people, or to those who are irresponsible?... From
whom is a corrupt decision most to be feared?... The power which has
the right of passing, without appeal, on the validity of your laws, is
your sovereign.... Are we not as deeply interested in the true
exposition of the Constitution as the judges can be?" inquired Randolph.
"Is not Congress as capable of forming a correct opinion as they are?
Are not its members acting under a responsibility to public opinion
which can and will check their aberrations from duty?"

Randolph referred to the case of Marbury _vs._ Madison and then recalled
the prosecution of Thomas Cooper in which the National court refused "to
a man under criminal prosecution ... a subpoena to be served on the
President, as a witness on the part of the prisoner.[257]... This court,
which it seems, has lately become the guardian of the feeble and
oppressed, against the strong arm of power, found itself destitute of
all power to issue the writ....

"No, sir, you may invade the press; the courts will support you, will
outstrip you in zeal to further this great object; your citizens may be
imprisoned and amerced, the courts will take care to see it executed;
the helpless foreigner may, contrary to the express letter of your
Constitution, be deprived of compulsory process for obtaining witnesses
in his defense; the courts in their extreme humility cannot find
authority for granting it."

Again Marbury _vs._ Madison came into the debate:[258] "In their
inquisitorial capacity," the Supreme Court, according to Marshall's
ruling in that case, could force the President himself to discharge his
executive functions "in what mode" the omnipotent judges might choose to
direct. And Congress! "For the amusement of the public, we shall retain
the right of debating but not of voting."[259] The judges could
forestall legislation by "inflammatory pamphlets," as they had
done.[260]

As the debate wore on, little that was new was adduced. Calvin Goddard
of Connecticut reviewed the cases in which judges of various courts had
asserted the Federalist doctrine of the judicial power to decide
statutes unconstitutional,[261] and quoted from Marshall's speech on the
Judiciary in the Virginia Convention of 1788.[262]

John Rutledge, Jr., of South Carolina, then delivered one of the most
distinguished addresses of this notable discussion. Suppose, he said,
that Congress were to pass any of the laws which the Constitution
forbids, "who are to decide between the Constitution and the acts of
Congress?... If the people ... [are] not shielded by some Constitutional
checks" their liberties will be "destroyed ... by demagogues, who filch
the confidence of the people by pretending to be their friends; ...
demagogues who carry daggers in their hearts, and seductive smiles in
their hypocritical faces."[263]

Rutledge was affected by the prevailing Federalist pessimism. "This
bill," said he, "is an egg which will produce a brood of mortal
consequences.... It will soon prostrate public confidence; it will
immediately depreciate the value of public property. Who will buy your
lands? Who will open your Western forests? Who will build upon the hills
and cultivate the valleys which here surround us?" The financial
adventurer who would take such risks "must be a speculator indeed, and
his purse must overflow ... if there be no independent tribunals where
the validity of your titles will be confirmed.[264]...

"Have we not seen a State [Georgia] sell its Western lands, and
afterwards declare the law under which they were sold made null and
void? Their nullifying law would have been declared void, had they had
an independent Judiciary."[265] Here Rutledge anticipated by eight years
the opinion delivered by Marshall in Fletcher _vs._ Peck.[266]

"Whenever in any country judges are dependent, property is insecure."
What had happened in France? "Frenchmen received their constitution as
the followers of Mahomet did their Koran, as though it came to them from
Heaven. They swore on their standards and their sabres never to abandon
it. But, sir, this constitution has vanished; the swords which were to
have formed a rampart around it, are now worn by the Consular
janissaries, and the Republican standards are among the trophies which
decorate the vaulted roof of the Consul's palace.[267] Indeed ... [the]
subject," avowed Rutledge with passionate earnestness, "is perhaps as
awful a one as any on this side of the grave. This attack upon our
Constitution will form a great epoch in the history of our
Government."[268]

Forcible resistance, if the Republican assault on the Judiciary
succeeded, had twice been intimated during the debate. As yet, however,
actual secession of the Northern and Eastern States had not been openly
suggested, although it was common talk among the Federalists;[269] but
now one of the boldest and frankest of their number broadly hinted it to
be the Federalist purpose, should the Republicans persist in carrying
out their purpose of demolishing the National courts.[270] In closing a
long, intensely partisan and wearisome speech, Roger Griswold of
Connecticut exclaimed: "There are states in this Union who will never
consent and are not doomed to become the humble provinces of
Virginia."

Joseph H. Nicholson of Maryland, Republican, was hardly less prolix than
Griswold. He asked whether the people had ever approved the adoption of
the common law by the Judiciary. "Have they ever sanctioned the
principle that the judges should make laws for them instead of their
Representatives?"[272] Tiresome as he was, he made a conclusive
argument against the Federalist position that the National Judiciary
might apply the common law in cases not provided for by acts of
Congress.

The debate ran into the month of March.[273] Every possible phase of the
subject was gone over time and again. All authorities which the ardent
and tireless industry of the contending partisans could discover were
brought to light. The pending case of Marbury _vs._ Madison was in the
minds of all; and it was repeatedly dragged into the discussion. Samuel
W. Dana of Connecticut examined it minutely, citing the action of the
Supreme Court in the case of the application for a mandamus to the
Secretary of War upon which the court acted February 14, 1794: "There
does not appear to have been any question respecting the general power
of the Supreme Court, to issue a mandamus to the Secretary of War, or
any other subordinate officer." That was "a regular mode for obtaining a
decision of the Supreme Court.... When such has been the unquestioned
usage heretofore, is it not extraordinary that there has not been
prudence enough to say less about the case of Marbury against the
Secretary of State?"[274]

Dana then touched upon the general expectation that Marshall would
declare void the Repeal Act. Because of this very apprehension, the
Republicans, a few days later, suspended for more than a year the
sessions of the Supreme Court. So Dana threatened that if the
Republicans should pass the bill, the Supreme Court would annul it; for,
said he, the Judiciary were sworn to support the Constitution, and when
they find that instrument on one side and an act of Congress on the
other, "what is their duty? Are they not to obey their oath, and judge
accordingly? If so, they necessarily decide, that your act is of no
force; for they are sworn to support the Constitution. This is a
doctrine coeval with the existence of our Government, and has been the
uniform principle of all the constituted authorities."[275] And he cited
the position taken by National judges in 1792 in the matter of the
pension commission.[276]

John Bacon, that stanch Massachusetts Republican,[277] asserted that
"the Judiciary have no more right to prescribe, direct or control the
acts of the other departments of the Government, than the other
departments of the Government have to prescribe or direct those of the
Judiciary."[278]

The Republicans determined to permit no further delay; for the first
time in its history the House was kept in session until midnight.[279]
At twelve o'clock, March 3, 1802, the vote was taken on the final
passage of the bill, the thirty-two Federalists voting against and the
fifty-nine Republicans for the measure.[280] "Thus ended this gigantic
debate," chronicles the historian of that event.[281] No discussion in
Congress had hitherto been so widely reported in the press or excited
such general comment. By the great majority of the people the repeal was
received with enthusiasm, although some Republicans believed that their
party had gone too far.[282] Republican papers, however, hailed the
repeal as the breaking of one of those judicial fetters which shackled
the people, while Federalist journals bemoaned it as the beginning of
the annihilation of all that was sane and worthy in American
institutions.

"The fatal bill has passed; our Constitution is no more," exclaimed the
_Washington Federalist_ in an editorial entitled

  "FAREWELL, A LONG FAREWELL, TO ALL OUR GREATNESS."

The paper despaired of the Republic--nobody could tell "what other acts,
urged by the intoxication of power and the fury of party rage" would be
put through. But it announced that the Federalist judges would disregard
the infamous Republican law: "The judges will continue to hold their
courts as if the bill had not passed. 'Tis their solemn duty to do it;
their country, all that is dear and valuable, call upon them to do it.
By the judges this bill will be declared null and void.... And we now
ask the mighty victors, what is your triumph?... What is the triumph of
the President? He has gratified his malice towards the judges, but he
has drawn a tear into the eye of every thoughtful patriot ... and laid
the foundation of infinite mischief." The Federalist organ declared that
the Republican purpose was to force a "dissolution of the Union," and
that this was likely to happen.

This significant editorial ended by a consideration of the Republican
purpose to destroy the Supreme Court: "Should Mr. Breckenridge now bring
forward a resolution to repeal the law establishing the Supreme Court of
the United States, we should only consider it a part of the system to be
pursued.... We sincerely expect it will be done next session.... Such is
democracy."[283]

Senator Plumer declared, before the final vote, that the passage of the
Republican Repeal Bill and of other Republican measures meant
"anarchy."[284]

The ultra-Federalist _Palladium_ of Boston lamented: "Our army is to be
less and our navy nothing: Our Secretaries are to be aliens and our
Judges as independent as spaniels. In this way we are to save
everything, but our reputation and our rights[285]... Has Liberty any
citadel or fortress, has mob despotism any impediments?"[286]

The _Independent Chronicle_, on the other hand, "congratulated the
public on the final triumph of _Republicanism_, in the repeal of the
late obnoxious judiciary law."[287] The Republicans of Boston and
Cambridge celebrated the event with discharges of artillery.

Vans Murray reported to King that "the principle
of ... disorganizing ... goes on with a destructive zeal. Internal
Taxes--Judicial Sanctity--all are to be overset."[288] Sedgwick was sure
that no defense was left against "legislative usurpation."[289] "The
angels of destruction ... are making haste," moaned Fisher Ames.[290]

"The angels of destruction" lost no time in striking their next blow. On
March 18, two weeks after the threat of the _Washington Federalist_ that
the Supreme Court would declare unconstitutional the Republican Repeal
Act, a Senate committee was appointed to examine further the National
Judiciary establishment and report a bill for any improvements
considered necessary.[291] Within a week the committee laid the measure
before the Senate,[292] and on April 8 it was passed[293] without
debate.

When it reached the House, however, the Federalists had taken alarm. The
Federalist Judiciary Act of 1801 had fixed the terms of the Supreme
Court in December and June instead of February and August. This new
bill, plainly an afterthought, abolished the June session of the
Supreme Court, directed that, thereafter, that tribunal should convene
but once each year, and fixed the second Monday of February as the time
of this annual session.

Thus did the Republicans plan to take away from the Supreme Court the
opportunity to pass upon the repeal of the Federalist Judiciary Act of
1801 until the old and defective system of 1789, which it restored, was
again in full operation. Meanwhile, the wrath of the new National
judges, whom the repeal left without offices, would wear itself down,
and they would accept the situation as an accomplished fact.[294] John
Marshall should have no early opportunity to overturn the Repeal Act, as
the Republicans believed he would do if given the chance. Neither should
he proceed further with the case of Marbury _vs._ Madison for many
months to come.[295]

Bayard moved that the bill should not go into effect until July 1, thus
permitting the Supreme Court to hold its June session; but, said
Nicholson, that was just what the Republicans intended to prevent. Was a
June session of the Supreme Court "a source of alarm?" asked Bayard.
"The effect of the present bill will be, to have no court for fourteen
months.... Are gentlemen afraid of the judges? Are they afraid that they
will pronounce the repealing law void?"[296]

Nicholson did not care whether the Supreme Court "pronounced the
repealing law unconstitutional or not." The Republican postponement of
the session for more than a year "does not arise from any design ... to
prevent the exercise of power by the judges." But what of the
Federalists' solicitude for an early sitting of the court? "We have as
good a right to suppose gentlemen on the other side are as anxious for a
session in June, that this power may be exercised, as they have to
suppose we wish to avoid it, to prevent the exercise."[297]

Griswold could not credit the Republicans with so base a purpose: "I
know that it has been said, out of doors, that this is the great object
of the bill. I know there have been slanders of this kind; but they are
too disgraceful to ascribe to this body. The slander cannot, ought not
to be admitted." So Griswold hoped that Republicans would permit the
Supreme Court to hold its summer session. He frankly avowed a wish for
an early decision that the Repeal Act was void. "I think the speedier it
[usurpation] is checked the better."[298]

Bayard at last flatly charged the Republicans with the purpose of
preventing the Supreme Court from holding the Repeal Act
unconstitutional. "This act is not designed to amend the Judicial
system," he asserted; "that is but pretense.... It is to prevent that
court from expressing their opinion upon the validity of the act lately
passed ... until the act has gone into full execution, and the
excitement of the public mind is abated.... Could a less motive induce
gentlemen to agree to suspend the sessions of the Supreme Court for
fourteen months?"[299]

But neither the pleading nor the denunciation of the Federalists moved
the Republicans. On Friday, April 23, 1802, the bill passed and the
Supreme Court of the United States was practically abolished for
fourteen months.[300]

At that moment began the movement that finally developed into the plan
for the secession of the New England States from the Union. It is,
perhaps, more accurate to say that the idea of secession had never been
entirely out of the minds of the extreme New England Federalist leaders
from the time Theodore Sedgwick threatened it in the debate over the
Assumption Bill.[301]

Hints of withdrawing from the Union if Virginia should become dominant
crop out in their correspondence. The Republican repeal of the Judiciary
Act immediately called forth many expressions in Federalist papers such
as this from the Boston _Palladium_ of March 2, 1802: "Whether the
rights and interests of the Eastern States would be perfectly safe when
Virginia rules the nation is a problem easy to solve but terrible to
contemplate.... As ambitious _Virginia_ will not be just, let valiant
_Massachusetts_ be zealous."

Fisher Ames declared that "the federalists must entrench themselves in
the State governments, and endeavor to make State justice and State
power a shelter of the wise, and good, and rich, from the wild
destroying rage of the southern Jacobins."[302] He thought the
Federalists had neglected the press. "It is practicable," said he, "to
rouse our sleeping patriotism--sleeping, like a drunkard in the snow....
The newspapers have been left to the lazy or the ill-informed, or to
those who undertook singly work enough for six."[303]

Pickering, the truculent, brave, and persistent, anticipated "a new
confederacy.... There will be--and our children at farthest will see
it--a separation.... The British Provinces, even with the assent of
Britain, will become members of the Northern Confederacy."[304]

The more moderate George Cabot, on the contrary, thought that the strong
defense made by the Federalists in Congress would induce the Republicans
to cease their attacks on the National courts. "The very able
discussions of the Judiciary Question," he wrote, "& great superiority
of the Federalists in all the debates & public writings have manifestly
checked the career of the _Revolutionists_."[305] But for once Cabot was
wrong; the Republicans were jubilant and hastened to press their assault
more vigorously than ever.

The Federalist newspapers teemed with long arguments against the repeal
and laboriously strove, in dull and heavy fashion, to whip their readers
into fighting humor. These articles were little more than turgid
repetitions of the Federalist speeches in Congress, with a passage here
and there of the usual Federalist denunciation. For instance, the
_Columbian Centinel_, after restating the argument against the Repeal
Act, thought that this "refutes all the absurd doctrines of the Jacobins
upon that subject, ... and it will be sooner or later declared by the
people, in a tone terrible to the present disorganizing party, to be the
true construction of their constitution, and the only one compatible
with their safety and happiness."[306]

The _Independent Chronicle_, on the other hand, was exultant. After
denouncing "the impudence and scurrility of the Federal faction," a
correspondent of that paper proceeded in this fashion: "The Judiciary!
The Judiciary! like a wreck on Cape Cod is dashing at every wave"; but,
thank Heaven, "instead of the 'Essex Junto's' Judiciary we are sailing
by the grace of God in the Washington _Frigate_--our judges are as at
first and Mr. Jefferson has thought fit to practice the old navigation
and steer with the same compass by which _Admiral Washington_ regulated
his log book. The Essex Junto may be afraid to trust themselves on board
but every true Washington American will step on board in full confidence
of a prosperous voyage. Huzza for the _Washington Judiciary_--no
windows broke--no doors burst in--free from leak--tight and dry."[307]

Destiny was soon again to call John Marshall to the performance of an
imperative duty.


FOOTNOTES:

[146] The Senate then met in the chamber now occupied by the Supreme
Court.

[147] See _infra_, chap. III.

[148] Jefferson to Congress, Dec. 8, 1801, _Works_: Ford, IX, 321 _et
seq._; also _Messages and Papers of the Presidents_: Richardson, I, 331.

[149] Jefferson, Jefferson MSS. Lib. Cong., partly quoted in Beard:
_Economic Origins of Jeffersonian Democracy_, 454-55.

[150] For full text of this exposition of Constitutional law by
Jefferson see Appendix A.

[151] Ames to King, Dec. 20, 1801, King, IV, 40.

Like most eminent Federalists, except Marshall, Hamilton, and Cabot,
Fisher Ames was soon to abandon his Nationalism and become one of the
leaders of the secession movement in New England. (See vol. IV, chap. I,
of this work.)

[152] See vol. II, 531, 547-48, 550-52, of this work.

[153] _Journal of Samuel Maclay_: Meginness, 90.

[154] _Annals_, 1st Cong. 1st Sess. 862.

[155] _Ib._ 852.

[156] _Ib._ 833-34.

[157] _Ib._ 864-65.

[158] _Maclay's Journal_, 98.

[159] Grayson to Henry, Sept. 29, 1789, Tyler, I, 170-71.

[160] Davie to Iredell, Aug. 2, 1791, _Life and Correspondence of James
Iredell_: McRee, II, 335.

[161] Vol. II, 552-53, of this work.

[162] Jay to Adams, Jan. 2, 1801, _Jay_: Johnston, IV, 285.

[163] _Annals_, 1st Cong. 2d and 3d Sess. 2239.

[164] See vol. I, chap. VI, of this work. The conditions of travel are
well illustrated by the experiences of six members of Congress, when
journeying to Philadelphia in 1790. "Burke was shipwrecked off the
Capes; Jackson and Mathews with great difficulty landed at Cape May and
traveled one hundred and sixty miles in a wagon to the city; Burke got
here in the same way. Gerry and Partridge were overset in the stage; the
first had his head broke, ... the other had his ribs sadly bruised....
Tucker had a dreadful passage of sixteen days with perpetual storms."
(Letter of William Smith, as quoted by Johnson: _Union and Democracy_,
105-06.)

On his way to Washington from Amelia County in 1805, Senator Giles was
thrown from a carriage, his leg fractured and his knee badly injured.
(Anderson, 101.)

[165] This arrangement proved to be so difficult and vexatious that in
1792 Congress corrected it to the extent of requiring only one Justice
of the Supreme Court to hold circuit court with the District Judge; but
this slight relief did not reach the serious shortcomings of the law.
(_Annals_, 2d Cong. 1st and 2d Sess. 1447.)

See Adams: _U.S._ I, 274 _et seq._, for good summary of the defects of
the original Judiciary Act, and of the improvements made by the
Federalist Law of 1801.

[166] See statement of Ogden, _Annals_, 7th Cong. 1st Sess. 172; of
Chipman, _ib._ 123; of Tracy, _ib._ 52; of Griswold, _ib._ 768; of
Huger, _ib._ 672.

[167] Of course, to some extent this evil still continued in the appeals
to the Circuit Bench; but the ultimate appeal was before judges who had
taken no part in the cause.

The soundness of the Federalist Judiciary Act of 1801 was demonstrated
almost a century later, in 1891-95, when Congress reënacted every
essential feature of it. (See "Act to establish circuit courts of
appeals and to define and regulate in certain cases the jurisdiction of
the courts of the United States, and for other purposes," March 3, 1891,
chap. 517, amended Feb. 18, 1895, chap. 96.)

[168] For example, Senator Cocke of Tennessee asserted the expense to be
$137,000. (_Annals_, 7th Cong. 1st. Sess. 30.) See especially Prof.
Farrand's conclusive article in _Am. Hist. Rev._ V, 682-86.

[169] It was to Breckenridge that Jefferson had entrusted the
introduction of the Kentucky Resolutions of 1798 into the Legislature of
that State. It was Breckenridge who had led the fight for them. At the
time of the judiciary debate he was Jefferson's spokesman in the Senate;
and later, at the President's earnest request, resigned as Senator to
become Attorney-General.

[170] Breckenridge's constituents insisted that the law be repealed,
because they feared that the newly established National courts would
conflict with the system of State courts which the Legislature of
Kentucky had just established. (See Carpenter, _Am. Pol. Sci. Rev._ IX,
523.)

Although the repeal had been determined upon by Jefferson almost
immediately after his inauguration (see Jefferson to Stuart, April 8,
1801; _Works_: Ford, IX, 247), Breckenridge relied upon that most
fruitful of Republican intellects, John Taylor "of Caroline," the
originator of the Kentucky Resolutions (see vol. II, 397, of this work)
for his arguments. See Taylor to Breckenridge, Dec. 22, 1801, _infra_,
Appendix B.

[171] _Annals_, 7th Cong. 1st Sess. 31-46, 51-52, 58, 513, 530.

[172] _Annals_, 7th Cong. 1st Sess. 26.

[173] _Ib._ 25.

[174] _Ib._ 28.

[175] Monroe to Breckenridge, Jan. 15, 1802, Breckenridge MSS. Lib.
Cong.

[176] See _infra_, chaps. III and IV.

[177] _Annals_, 7th Cong. 1st Sess. 31-32.

[178] _Annals_, 7th Cong. 1st Sess. 38.

[179] This unfortunate declaration of Morris gave the Republicans an
opportunity of unlimited demagogic appeal. See _infra_. (Italics the
author's.)

[180] _Annals_, 7th Cong. 1st Sess. 40-41.

Morris spoke for an hour. There was a "large audience, which is not
common for that House." He prepared his speech for the press. (_Diary
and Letters of Gouverneur Morris_: Morris, II, 417.)

[181] _Annals_, 7th Cong. 1st Sess. 49.

[182] _Ib._ 47-48. Senator Jackson here refers to the case of Marbury
_vs._ Madison, then pending before the Supreme Court. (See _infra_,
chap. III.) This case was mentioned several times during the debate. It
is plain that the Republicans expected Marshall to award the mandamus,
and if he did, to charge this as another act of judicial aggression for
which, if the plans already decided upon did not miscarry, they would
make the new Chief Justice suffer removal from his office by
impeachment. (See _infra_, chap. IV.)

[183] _Annals_, 7th Cong. 1st Sess. 58. Tracy's speech performed the
miracle of making one convert. After he closed he was standing before
the glowing fireplace, "half dead with his exertions." Senator Colhoun
of South Carolina came to Tracy, and giving him his hand, said: "You are
a stranger to me, sir, but by ---- you have made me your friend."
Colhoun said that he "had been told a thousand lies" about the
Federalist Judiciary Act, particularly the manner of passing it, and he
had, therefore, been in favor of repealing it. But Tracy had convinced
him, and Colhoun declared: "I shall be with you on the question." "May
we depend upon you?" asked Tracy, wringing the South Carolina Senator's
hand. "By ---- you may," was the response. (Morison: _Life of the Hon.
Jeremiah Smith_, footnote to 147.) Colhoun kept his word and voted with
the Federalists against his party's pet measure. (_Annals_, 7th Cong.
1st Sess. 185.)

The correct spelling of this South Carolina Senator's name is _Colhoun_,
and not C_a_lhoun, as given in so many biographical sketches of him.
(See _South Carolina Magazine_ for July, 1906.)

[184] See Grigsby: _Virginia Convention of 1788_, II, 260-262.

This was the same Senator who, in violation of the rules of the Senate,
gave to the press a copy of the Jay Treaty which the Senate was then
considering. The publication of the treaty raised a storm of public
wrath against that compact. (See vol. II, 115, of this work.) Senator
Mason's action was the first occurrence in our history of a treaty thus
divulged.

[185] _Annals_, 7th Cong. 1st Sess. 59.

[186] In that case Marshall had issued a rule to the Secretary of State
to show cause why a writ of mandamus should not be issued by the court
ordering him to deliver to Marbury and his associates commissions as
justices of the peace, to which offices President Adams had appointed
them. (See _infra_, chap. III.)

[187] _Annals_, 7th Cong. 1st Sess. 61.

[188] _Annals_, 7th Cong. 1st Sess. 63.

[189] _Annals_, 7th Cong. 1st Sess. 66. The eloquence of the Virginia
Senator elicited the admiration of even the rabidly Federalist
_Columbian Centinel_ of Boston. See issue of February 6, 1802.

[190] _Ib._ 77.

[191] _Ib._ 83.

[192] _Annals_, 7th Cong. 1st Sess. 89.

[193] _Ib._ 91-92.

[194] _Annals_, 7th Cong. 1st Sess. 99.

[195] Morris notes in his diary that, on the same day, the Senate
resolved "to admit a short-hand writer to their floor. This is the
beginning of mischief." (Morris, II, 416-17.)

[196] January 27, 1802.

[197] _Annals_, 7th Cong. 1st Sess. 149.

[198] _Annals_, 7th Cong. 1st Sess. 150.

Burr's action was perfectly correct. As an impartial presiding officer,
he could not well have done anything else. Alexander J. Dallas,
Republican Attorney-General of Pennsylvania, wrote the Vice-President a
letter approving his action. (Dallas to Burr, Feb. 3, 1802, Davis:
_Memoirs of Aaron Burr_, II, 82.) Nathaniel Niles, a rampant Republican,
sent Burr a letter thanking him for his vote. As a Republican, he wanted
his party to be fair, he said. (Niles to Burr, Feb. 17, 1802, _ib._
83-84.) Nevertheless, Burr's vote was seized upon by his enemies as the
occasion for beginning those attacks upon him which led to his overthrow
and disgrace. (See chaps. VI, VII, VIII, and IX of this volume.)

[199] _Annals_, 7th Cong. 1st Sess. 178-79.

[200] See Appendix A to this volume.

[201] _Annals_, 7th Cong. 1st Sess. 179.

[202] _Ib._ 180.

[203] It was five o'clock (_ib._ 178) when Senator Breckenridge began to
speak; it must have been well after six when Senator Morris rose to
answer him.

[204] _Ib._ 180.

[205] _Ib._ 180.

[206] _Annals_, 7th Cong. 1st Sess. 181.

[207] Troup to King, April 9, 1802, King, IV, 103.

[208] Bayard to Bassett, Jan. 25, 1802, _Papers of James A. Bayard_:
Donnan, 146-47.

[209] Except Colhoun of South Carolina, converted by Tracy. See _supra_,
62.

[210] _Annals_, 7th Cong. 1st Sess. 183.

[211] _Ib._ 510. A correspondent of the _Columbian Centinel_, reporting
the event, declared that "the stand which the Federal Senators have made
to preserve the Constitution, has been manly and glorious. They have
immortalized their names, while those of their opposers will be
execrated as the assassins of the Constitution." (_Columbian Centinel_,
Feb. 17, 1802.)

[212] _Annals_, 7th Cong. 1st Sess. 518-19.

[213] _Ib._ 521-22.

[214] See vol. II, 532, 541.

[215] _Washington Federalist_, Feb. 13, 1802.

[216] Henderson in _North Carolina Booklet_, XVII, 66.

[217] _Annals_, 7th Cong. 1st Sess. 529-30.

[218] See _infra_, chap. IV.

[219] _Annals_, 7th Cong. 1st Sess. 531.

[220] _Annals_, 7th Cong. 1st Sess. 552-53.

[221] _Ib._ 554.

[222] _Ib._ 558.

[223] See _infra_, chap. IV.

[224] See, for example, the speeches of Thomas Morris of New York
(_Annals_, 7th Cong. 1st Sess. 565-68); Calvin Goddard of Connecticut
(_ib._ 727-34); John Stanley of North Carolina (_ib._ 569-78); Roger
Griswold of Connecticut (_ib._ 768-69).

[225] _Annals_, 7th Cong. 1st Sess. 579.

[226] Anderson, 83. Grigsby says that "Mr. Jefferson pronounced him
(Giles) the ablest debater of the age." His speech on the Repeal Act,
Grigsby declares to have been "by far his most brilliant display."
(Grigsby: _Virginia Convention of 1829-30_, 23, 29.)

[227] Anderson, 76-82.

[228] See _supra_, 72.

[229] This statement, coming from the Virginia radical, reveals the
profound concern of the Republicans, for Giles thus declared that the
Judiciary debate was of greater consequence than those historic
controversies over Assumption, the Whiskey Rebellion, the Bank,
Neutrality, the Jay Treaty, the French complication, the army, and other
vital subjects. In most of those encounters Giles had taken a leading
and sometimes violent part.

[230] _Annals_, 7th Cong. 1st Sess. 512.

[231] Story's description of Giles six years later: Story to Fay, Feb.
13, 1808, Story, I, 158-59. Also see Anderson, frontispiece and 238.

Giles was thirty-nine years of age. He had been elected to the House in
1790, and from the day he entered Congress had exasperated the
Federalists. It is an interesting though trivial incident that Giles
bore to Madison a letter of introduction from Marshall. Evidently the
circumspect Richmond attorney was not well impressed with Giles, for the
letter is cautious in the extreme. (See Anderson, 10; also _Annals_, 7th
Cong. 1st Sess. 581.)

[232] _Annals_, 7th Cong. 1st Sess. 580-81.

[233] _Annals_, 7th Cong. 1st Sess. 582.

[234] _Ib._ 583.

[235] See _supra_, chap. I.

[236] Marbury _vs._ Madison (see _infra_, chap. III). For Giles's great
speech see _Annals_, 7th Cong. 1st Sess. 579-602.

[237] Bayard is "a fine, personable man ... of strong mental powers....
Nature has been liberal to him.... He has, in himself, vast
resources ... a lawyer of high repute ... and a man of integrity and
honor.... He is very fond of pleasure ... a married man but fond of
wine, women and cards. He drinks more than a bottle of wine each day....
He lives too fast to live long.... He is very attentive to dress and
person." (Senator William Plumer's description of James A. Bayard, March
10, 1803, "Repository," Plumer MSS. Lib. Cong.)

[238] _Annals_, 7th Cong. 1st Sess. 605.

[239] _Ib._ 606.

[240] _Ib._ 609.

[241] _Ib._ 611.

[242] _Ib._ 614.

[243] _Annals_, 7th Cong. 1st Sess. 615.

[244] Bayard's summary of the shortcomings of the Ellsworth Act of 1789
and the excellence of the Judiciary Act of 1801 (_Annals_, 7th Cong. 1st
Sess. 616-27) was the best made at that time or since.

[245] _Ib._ 632.

[246] See _infra_, chap. IV.

[247] Bayard pointed out that Charles Pinckney of South Carolina, whose
"zeal and industry" decided the Presidential vote of his State, had been
appointed Minister to Spain; that Claiborne of Tennessee held the vote
of that State and cast it for Jefferson, and that Jefferson had
conferred upon him "the high degree of Governor of the Mississippi
Territory"; that Mr. Linn of New Jersey, upon whom both parties
depended, finally cast his deciding vote in favor of Jefferson and "Mr.
Linn has since had the profitable office of supervisor of his district
conferred upon him"; and that Mr. Lyon of Vermont neutralized the vote
of his State, but since "his character was low ... Mr. Lyon's son has
been handsomely provided for in one of the Executive offices."
(_Annals_, 7th Cong. 1st Sess. 640.) Bayard named other men who had
influenced the vote in the House and who had thereafter been rewarded by
Jefferson.

[248] _Annals_, 7th Cong. 1st Sess. 645-48.

[249] _Ib._ 648-50. This was the second open expression in Congress of
the spirit that led the New England Federalist leaders into their futile
secession movement. (See _infra_, chaps. III and VI; also vol. IV, chap.
I, of this work.)

[250] Adams to Bayard, April 10, 1802; _Bayard Papers_: Donnan, 152.

[251] _Washington Federalist_, Feb. 20, 1802.

[252] Members of Congress wore their hats during the sessions of House
and Senate until 1828. For a description of Randolph in the House, see
Tyler, I, 291. Senator Plumer pictured him as "a pale, meagre, ghostly
man," with "more popular and effective talents than any other member of
his party." (Plumer to Emery, Plumer, 248.) See also Plumer's letter to
his son, Feb. 22, 1803, in which the New Hampshire Senator says that
"Randolph goes to the House booted and spurred, with his whip in his
hand, in imitation, it is said, of members of the British Parliament. He
is a very slight man, but of the common stature." At a distance he looks
young, but "upon a nearer approach you perceive his wrinkles and grey
hairs. He is, I believe, about thirty." (_Ib._ 256.)

[253] The personal domination which John Randolph of Roanoke wielded
over his party in Congress, until he broke with Jefferson (see _infra_,
chaps. IV and X), is difficult to realize at the present day. Nothing
like it has since been experienced, excepting only the merciless rule of
Thaddeus Stevens of Pennsylvania from 1862 until 1868. (See Woodburn:
_Life of Thaddeus Stevens_, 247 _et seq._)

[254] _Washington Federalist_, Feb. 22, 1802.

[255] _Annals_, 7th Cong. 1st Sess. 650-51.

[256] _Annals_, 7th Cong. 1st Sess. 652.

[257] See _supra_, chap. I, 33; also _infra_, chap. IX, where Marshall,
during the trial of Aaron Burr, actually issued such a subpoena.
Randolph was now denouncing the National court before which Cooper was
tried, because it refused to grant the very writ for the issuing of
which Marshall in a few years was so rancorously assailed by Jefferson
personally, and by nearly all Republicans as a party.

[258] At the time Marshall issued the rule against Madison he apparently
had no idea that Section 13 of the Ellsworth Judiciary Act was
unconstitutional. (See next chapter.)

[259] _Annals_, 7th Cong. 1st Sess. 662-63.

[260] The Federalist organ tried, by ridicule, to minimize Randolph's
really strong speech. "The speech of Mr. Randolph was a jumble of
disconnected declamation.... He was horribly tiresome to the ear and
disgusting to the taste." (_Washington Federalist_, Feb. 22, 1802.)

[261] _Annals_, 7th Cong. 1st Sess. 727.

[262] _Ib._ 737. See also vol. I, 452, of this work.

[263] _Annals_, 7th Cong. 1st Sess. 747-55.

[264] _Ib._ 759.

[265] _Ib._ 760.

[266] See _infra_, chap. X.

[267] _Annals_, 7th Cong. 1st Sess. 760.

[268] _Ib._ 760.

[269] See _infra_, chaps. III and VI.

[270] _Annals_, 7th Cong. 1st Sess. 767-94.

[271] _Ib._ 793.

[272] _Ib._ 805-06.

[273] In sour disgust Morris notes in his diary: "The House of
Representatives have talked themselves out of self-respect, and at
headquarters [White House] there is such an abandonment of manner and
such a pruriency of conversation as would reduce even greatness to the
level of vulgarity." (March 10, 1802, Morris, II, 421.)

[274] _Annals_, 7th Cong. 1st Sess. 904.

Dana's statement is of first importance and should be carefully noted.
It was at the time the universally accepted view of the power of the
Supreme Court to issue writs of mandamus. Neither Federalists nor
Republicans had ever questioned the Constitutional right of the Supreme
Court to entertain original jurisdiction of mandamus proceedings in
proper cases. Yet just this was what Marshall was so soon to deny in
Marbury _vs._ Madison. (See _infra_, chap. III.)

[275] _Annals_, 7th Cong. 1st Sess. 920.

[276] _Ib._ 923-26.

[277] See _supra_, chap, I, 43.

[278] _Annals_, 7th Cong. 1st Sess. 983.

[279] Hildreth, V, 441.

[280] Bayard to Bassett, March 3, 1802, _Bayard Papers_: Donnan, 150;
and see _Annals_, 7th Cong. 1st Sess. 982. One Republican, Dr. William
Eustis of Boston, voted with the Federalists.

[281] _Hist. Last Sess. Cong. Which Commenced 7th Dec. 1801_ (taken from
the _National Intelligencer_), 71.

[282] Tucker: _Life of Thomas Jefferson_, II, 114.

[283] _Washington Federalist_, March 3, 1802. Too much importance cannot
be attached to this editorial. It undoubtedly expressed accurately the
views of Federalist public men in the Capital, including Marshall, whose
partisan views and feelings were intense. It should not be forgotten
that his relations with this newspaper were believed to be intimate.
(See vol. II, 532, 541, of this work.)

[284] Plumer to Upham, March 1, 1802, Plumer MSS. Lib. Cong.

[285] March 12, 1802.

[286] March 23, 1802.

[287] March 15, 1802.

[288] Vans Murray to King, April 5, 1802, King, IV, 95.

[289] Sedgwick to King, Feb. 20, 1802, _ib._ 73.

[290] Ames to Dwight, April 16, 1802, Ames, I, 297.

[291] _Annals_, 7th Cong. 1st Sess. 201.

[292] _Ib._ 205.

[293] _Ib._ 257.

[294] They never occupied the bench under the Federalist Act of 1801.
They were appointed, but the swift action of Jefferson and the
Republicans prevented them from entering upon the discharge of their
duties.

[295] This case was before the Supreme Court in December, 1801, and,
ordinarily, would have been decided at the next term, June, 1802.

[296] _Annals_, 7th Cong. 1st Sess. 1228-29.

[297] _Annals_, 7th Cong. 1st Sess. 1229.

[298] _Ib._ 1229-30.

[299] _Annals_, 7th Cong. 1st Sess. 1235-36.

[300] _Ib._ 1236. See also Channing, _U.S._ IV, 280-81.

[301] See vol. II, 62, of this work.

[302] Ames to Gore, Dec. 13, 1802, Ames, I, 310.

[303] _Ib._ Here is another characteristic passage from Ames, who
accurately expressed New England Federalist sentiment: "The second
French and first American Revolution is now commencing.... The
extinction of Federalism would be followed by the ruin of the wise,
rich, and good." (Ames to Smith, Dec. 14, 1802, _ib._ 313-16.)

[304] Pickering to Peters, Dec. 24, 1803, _New-England Federalism_:
Adams, 338.

[305] Cabot to King, March 27, 1802, King, IV, 94.

[306] _Columbian Centinel_, April 7, 1802.

[307] "Bowling" in the _Independent Chronicle_ of April 26, 1802. An
example of Jefferson's amazing skill in directing public opinion is
found in the fact that the people were made to feel that the President
was following in Washington's footsteps.




CHAPTER III

MARBURY VERSUS MADISON

    To consider the judges as the ultimate arbiters of all
    constitutional questions would place us under the despotism of
    an oligarchy. (Jefferson.)

    The constitution is either a superior paramount law,
    unchangeable by ordinary means, or it is on a level with
    ordinary legislative acts alterable when the legislature shall
    please to alter it. It is emphatically the province and duty of
    the judicial department to say what the law is. This is the very
    essence of judicial duty. (Marshall.)

    To have inscribed this vast truth of conservatism upon the
    public mind, so that no demagogue not in the last stages of
    intoxication denies it--this is an achievement of statesmanship
    which a thousand years may not exhaust or reveal all that is
    good. (Rufus Choate.)


                                       "RAWLEIGH, Jan^{y:} 2^{d.} 1803

"MY DEAREST POLLY

"You will laugh at my vexation when you hear the various calamaties that
have befallen me. In the first place when I came to review my funds, I
had the mortification to discover that I had lost 15 silver dollars out
of my waist coat pocket. They had worn through the various mendings the
pocket had sustained & sought their liberty in the sands of Carolina.

"I determined not to vex myself with what coud not be remedied & orderd
Peter to take out my cloaths that I might dress for court when to my
astonishment & grief after fumbling several minutes in the portmanteau,
staring at vacancy, & sweating most profusely he turned to me with the
doleful tidings that I had no pair of breeches. You may be sure this
piece of inteligence was not very graciously receivd; however, after a
little scolding I determined to make the best of my situation &
immediately set out to get a pair made.

"I thought I should be a sans culotte only one day & that for the
residue of the term I might be well enough dressd for the appearance on
the first day to be forgotten. But, the greatest of evils, I found, was
followed by still greater! Not a taylor in town coud be prevaild on to
work for me. They were all so busy that it was impossible to attend to
my wants however pressing they might be, & I have the extreme
mortification to pass the whole time without that important article of
dress I have mentiond. I have no alleviation for this misfortune but the
hope that I shall be enabled in four or five days to commence my journey
homeward & that I shall have the pleasure of seeing you & our dear
children in eight or nine days after this reaches you.

"In the meantime I flatter myself that you are well & happy.

                              "Adieu my dearest Polly
                                   I am your ever affectionate
                                                   J MARSHALL."[308]

With the same unfailing light-heartedness which, nearly a quarter of a
century before, had cheered his comrades at Valley Forge, John Marshall,
Chief Justice of the United States, thus went about his duties and bore
his troubles. Making his circuit in a battered gig or sulky, which he
himself usually drove, absent-minded and laughing at himself for the
mishaps that his forgetfulness and negligence continually brought upon
him, he was seemingly unperturbed in the midst of the political
upheaval.

Yet he was not at ease. Rufus King, still the American Minister to Great
Britain, had finally settled the controversy over the British debts,
upon the very basis laid down by Marshall when Secretary of State.[309]
But Jefferson's Administration now did not hesitate to assert that this
removal of one cause of conflict with Great Britain was the triumph of
Republican diplomacy. Marshall, with unreserve so unlike him, reveals to
King his disgust and sense of injury, and in doing so portrays the
development of political conditions.

"The advocates of the present administration ascribe to it great
praise," wrote Marshall to our Minister in London, "for having, with so
much dexterity & so little loss, extricated our country from a debt of
twenty-four million of dollars in which a former administration had
involved it.... The mortifying reflection obtrudes itself, that the
reputation of the most wise & skilful conduct depends, in this our
capricious world, so much on accident. Had Mr. Adams been reelected
President of the United States, or had his successor been
[a Federalist] ... a very different reception ... would have been
given to the same measure.

"The payment of a specific sum would then have been pronounced, by those
who now take merit to themselves for it, a humiliating national
degradation, an abandonment of national interest, a free will offering
of millions to Britain for her grace & favor, by those who sought to
engage in a war with France, rather than repay, in part, by a small loan
to that republic, the immense debt of gratitude we owe her."

So speaks with bitter sarcasm the new Chief Justice, and pessimistically
continues: "Such is, & such I fear will ever be human justice!" He tells
King that the Federalist "disposition to coalesce" with the Republicans,
which seemed to be developing during the first few months after
Jefferson's inauguration, had disappeared; "but," he adds, "the minority
[Federalist Party] is only recovering its strength & firmness. It
acquires nothing." Then, with the characteristic misgivings of a
Federalist, he prophesies: "Our political tempests will long, very long,
exist, after those who are now toss'd about by them shall be at
rest."[310]

For more than five years[311] Marshall had foreseen the complicated and
dangerous situation in which the country now found itself; and for more
than a year[312] he had, in his ample, leisurely, simple manner of
thinking, been framing the constructive answer which he was at last
forced to give to the grave question: Who shall say with final authority
what is and what is not law throughout the Republic? In his opinion in
the case of Marbury _vs._ Madison, to which this chapter is devoted, we
shall see how John Marshall answered this vital question.

The philosophy of the Virginia and Kentucky Resolutions had now become
the ruling doctrine of the Republican Party. The writer of the creed of
State Rights sat in the Executive chair, while in House and Senate
Virginia and her daughter Kentucky ruled the Republican majority. The
two States that had declared the right and power of any member of the
Union to pronounce a National law unconstitutional, and that had
actually asserted a National statute to be null and void, had become the
dominant force in the National Government.

The Federalist majority in the legislatures of ten States,[313] it is
true, had passed resolutions denouncing that anti-National theory, and
had vigorously asserted that the National Judiciary alone had the power
to invalidate acts of Congress.[314] _But in none of these States had
the Republican minority concurred_. In all of them the Republicans had
vigorously fought the Federalist denial of the right and power of the
States to nullify National laws, and had especially resisted the
Federalist assertion that this power was in the National Judiciary.

In the New York Legislature, forty-three Republicans voted solidly
against the Federalist reply to Virginia and Kentucky, while the
Federalists were able to muster but fifty votes in its favor. In
Massachusetts, Pennsylvania, and Maryland, the Republican opposition was
determined and outspoken.

The thirty-three Republicans of the Vermont Legislature cited, in their
protest, the position which Marshall had taken on the Sedition Law in
his campaign for Congress:[315] "We have ever been of an opinion, with
that much and deservedly respected statesman, Mr. Marshall, (whose
abilities and integrity have been doubted by no party, and whose
spirited and patriotic defence of his country's rights, has been
universally admired)[316] that 'it was calculated to create
_unnecessarily_, discontents and jealousies, at a time, when our very
existence as a nation may depend on our union.'"[317]

In Southern States, where the Federalists were dominant when Kentucky
and Virginia adopted their famous Resolutions, the Republicans were,
nevertheless, so strong that the Federalist majority in the Legislatures
of those States dared not attempt to deny formally the new Republican
gospel.[318]

So stood the formal record; but, since it had been written, the
Jeffersonian propaganda had drawn scores of thousands of voters into the
Republican ranks. The whole South had now decisively repudiated
Federalism. Maryland had been captured; Pennsylvania had become as
emphatically Republican as Virginia herself; New York had joined her
forces to the Republican legions. The Federalists still held New England
and the States of Delaware and New Jersey, but even there the incessant
Republican assaults, delivered with ever-increasing strength, were
weakening the Federalist power. Nothing was plainer than that, if the
Kentucky and Virginia Resolutions had been submitted to the Legislatures
of the various States in 1801-1803, most of them would have
enthusiastically endorsed them.

Thus the one subject most discussed, from the campaign of 1800 to the
time when Marshall delivered his opinion in Marbury _vs._ Madison, was
the all-important question as to what power, if any, could annul acts of
Congress.[319] During these years popular opinion became ever stronger
that the Judiciary could not do so, that Congress had a free hand so far
as courts were concerned, and that the individual States might ignore
National laws whenever those States deemed them to be infractions of the
Constitution. As we have seen, the Republican vote in Senate and House,
by which the Judiciary Act of 1801 was repealed, was also a vote against
the theory of the supervisory power of the National Judiciary over
National legislation.

Should this conclusion go unchallenged? If so, it would have the
sanction of acquiescence and soon acquire the strength of custom. What
then would become the condition of the country? Congress might pass a
law which some States would oppose and which they would refuse to obey,
but which other States would favor and of which they would demand the
enforcement. What would this entail? At the very least it would provoke
a relapse into the chaos of the Confederation and more probably civil
war. Or a President might take it upon himself to pronounce null and
void a law of Congress, as Jefferson had already done in the matter of
the Sedition Law,[320] and if House and Senate were of a hostile
political party, Congress might insist upon the observance of its
legislation; but such a course would seriously damage the whole
machinery of the National Government.

The fundamental question as to what power could definitely pass upon the
validity of legislation must be answered without delay. Some of
Marshall's associates on the Supreme Bench were becoming old and feeble,
and death, or resignation enforced by illness, was likely at any moment
to break the Nationalist solidarity of the Supreme Court;[321] and the
appointing power had fallen into the hands of the man who held the
subjugation of the National Judiciary as one of his chief purposes.

Only second in importance to these reasons for Marshall's determination
to meet the issue was the absolute necessity of asserting that there was
one department of the Government that could not be influenced by
temporary public opinion. The value to a democracy of a steadying force
was not then so well understood as it is at present, but the Chief
Justice fully appreciated it and determined at all hazards to make the
National Judiciary the stabilizing power that it has since become. It
should be said, however, that Marshall no longer "idolized democracy,"
as he declared he did when as a young man he addressed the Virginia
Convention of 1788.[322] On the contrary, he had come to distrust
popular rule as much as did most Federalists.

A case was then pending before the Supreme Court the decision of which
might, by boldness and ingenuity, be made to serve as the occasion for
that tribunal's assertion of its right and power to invalidate acts of
Congress and also for the laying-down of rules for the guidance of all
departments of the Government. This was the case of Marbury _vs._
Madison.

Just before his term expired,[323] President Adams had appointed
forty-two persons to be justices of the peace for the Counties of
Washington and Alexandria in the District of Columbia.[324] The
Federalist Senate had confirmed these nominations,[325] and the
commissions had been signed and sealed, but had not been delivered. When
Jefferson was inaugurated he directed Madison, as Secretary of State, to
issue commissions to twenty-five of the persons appointed by Adams, but
to withhold the commissions from the other seventeen.[326]

Among the latter were William Marbury, Dennis Ramsay, Robert Townsend
Hooe, and William Harper. These four men applied to the Supreme Court
for a writ of mandamus compelling Madison to deliver their commissions.
The other thirteen did not join in the suit, apparently considering the
office of justice of the peace too insignificant to be worth the expense
of litigation. Indeed, these offices were deemed so trifling that one of
Adams's appointees to whom Madison delivered a commission resigned, and
five others refused to qualify.[327]

When the application of Marbury and his associates came before Marshall
he assumed jurisdiction, and in December, 1801, issued the usual rule to
Madison ordering him to show cause at the next term of the Supreme Court
why the writ of mandamus should not be awarded against him. Soon
afterward, as we have seen, Congress abolished the June session of the
Supreme Court;[328] thus, when the court again convened in February,
1803, the case of Marbury _vs._ Madison was still pending.

Marshall resolved to make use of this unimportant litigation to assert,
at the critical hour when such a pronouncement was essential, the power
of the Supreme Court to declare invalid acts of Congress that violate
the Constitution.

Considering the fact that Marshall was an experienced politician, was
intimately familiar with the political methods of Jefferson and the
Republican leaders, and was advised of their purposes, he could not have
failed to realize the probable consequences to himself of the bold
course he now determined to take. As the crawling months of 1802 wore
on, no signs appeared that the Republican programme for overthrowing the
independence of the Judiciary would be relinquished or modified. On the
contrary, the coming of the new year (1803) found the second phase of
the Republican assault determined upon.

At the beginning of the session of 1803 the House impeached John
Pickering, Judge of the United States District Court for the District
of New Hampshire. In Pennsylvania, the recently elected Republican House
had impeached Judge Alexander Addison, and his conviction by a partisan
vote was assured. Already the Republican determination to remove Samuel
Chase from the Supreme Bench was frankly avowed.[329]

Moreover, the Republicans openly threatened to oust Marshall and his
Federalist associates in case the court decided Marbury _vs._ Madison as
the Republicans expected it would. They did not anticipate that Marshall
would declare unconstitutional that section of the old Federalist
Judiciary Act of 1789 under which the suit had been brought. Indeed,
nobody imagined that the court would do that.

Everybody apparently, except Marshall and the Associate Justices,
thought that the case would be decided in Marbury's favor and that
Madison would be ordered to deliver the withheld commissions. It was
upon this supposition that the Republican threats of impeachment were
made. The Republicans considered Marbury's suit as a Federalist partisan
maneuver and believed that the court's decision and Marshall's opinion
would be inspired by motives of Federalist partisanship.[330]

There was a particular and powerful reason for Marshall to fear
impeachment and removal from office; for, should he be deposed, it was
certain that Jefferson would appoint Spencer Roane of Virginia to be
Chief Justice of the United States. It was well known that Jefferson had
intended to appoint Roane upon the death of Chief Justice
Ellsworth.[331] But Ellsworth had resigned in time to permit Adams to
appoint Marshall as his successor and thus thwart Jefferson's purpose.
If now Marshall were removed, Roane would be given his place.

Should he be succeeded by Roane, Marshall knew that the great principles
of Nationalism, to the carrying-out of which his life was devoted,
would never be asserted by the National Judiciary. On the contrary, the
Supreme Court would become an engine for the destruction of every theory
of government which Marshall held dear; for a bolder, abler, and more
persistent antagonist of those principles than Spencer Roane did not
exist.[332] Had he become Chief Justice those cases in which Marshall
delivered opinions that vitalized the Constitution would have been
decided in direct opposition to Marshall's views.[333]

But despite the peril, Marshall resolved to act. Better to meet the
issue now, come what might, than to evade it. If he succeeded, orderly
government would be assured, the National Judiciary lifted to its high
and true place, and one element of National disintegration suppressed,
perhaps destroyed. If he failed, the country would be in no worse case
than that to which it was rapidly tending.

No words in the Constitution gave the Judiciary the power to annul
legislation. The subject had been discussed in the Convention, but the
brief and scattering debate had arisen upon the proposition to make the
President and Justices of the Supreme Court members of a Council of
Revision with power to negative acts of Congress. No direct resolution
was ever offered to the effect that the Judiciary should be given power
to declare acts of Congress unconstitutional. In the discussion of the
proposed Council of Revision there were sharp differences of opinion on
the collateral question of the right and wisdom of judicial control of
legislative acts.[334] But, in the end, nothing was done and the whole
subject was dropped.

Such was the record of the Constitutional Convention when, by his
opinion in Marbury _vs._ Madison, Marshall made the principle of
judicial supremacy over legislation as much a part of our fundamental
law as if the Constitution contained these specific words: the Supreme
Court shall have the power to declare invalid any act of Congress which,
in the opinion of the court, is unconstitutional.

In establishing this principle Marshall was to contribute nothing new to
the thought upon the subject. All the arguments on both sides of the
question had been made over and over again since the Kentucky and
Virginia Resolutions had startled the land, and had been freshly stated
in the Judiciary debate in the preceding Congress. Members of the
Federalist majority in most of the State Legislatures had expressed, in
highly colored partisan rhetoric, every sound reason for the theory that
the National Judiciary should be the ultimate interpreter of the
Constitution. Both Federalist and Republican newspapers had printed
scores of essays for and against that doctrine.

In the Virginia Convention of 1788 Marshall had announced as a
fundamental principle that if Congress should pass an unconstitutional
law the courts would declare it void,[335] and in his reply to the
address of the majority of the Virginia Legislature[336] he had
elaborately, though with much caution and some mistiness, set forth his
views.[337] Chief Justice Jay and his associates had complained that the
Judiciary Act of 1789 was unconstitutional, but they had not had the
courage to announce that opinion from the Bench.[338] Justices Iredell
and Paterson, sitting as circuit judges, had claimed for the National
Judiciary the exclusive right to determine the constitutionality of
laws. Chief Justice Jay in charging a grand jury, and Associate Justice
Wilson in a carefully prepared law lecture, had announced the same
conclusion.

Various State judges of the Federalist faith, among them Dana of
Massachusetts and Addison of Pennsylvania, had spoken to like effect. At
the trial of Callender[339] Marshall had heard Chase deliver the opinion
that the National Judiciary had the exclusive power to declare acts of
Congress unconstitutional.[340] Jefferson himself had written Meusnier,
the year before the National Constitution was framed, that the Virginia
Legislature had passed unconstitutional laws,[341] adding: "I have not
heard that in the other states they have ever infringed their
constitution; ... _as the judges would consider any law as void_ which
was contrary to the constitution."[342]

Just as Jefferson, in writing the Declaration of Independence, put on
paper not a single new or original idea, but merely set down in clear
and compact form what had been said many times before,[343] so Marshall,
in his opinion in Marbury _vs._ Madison, did nothing more than restate
that which had previously been declared by hundreds of men. Thomas
Jefferson and John Marshall as private citizens in Charlottesville and
Richmond might have written Declarations and Opinions all their lives,
and to-day none but the curious student would know that such men had
ever lived. It was the authoritative position which these two great
Americans happened to occupy and the compelling emergency for the
announcement of the principles they expressed, as well as the soundness
of those principles, that have given immortality to their enunciations.

Learned men have made exhaustive research for legal decisions by which
Marshall's footsteps may have been guided, or which, at least, would
justify his conclusion in Marbury _vs._ Madison.[344] The cases thus
discovered are curious and interesting, but it is probable that
Marshall had not heard of many of them. At any rate, he does not cite
one of them in the course of this opinion, although no case ever was
decided in which a judge needed so much the support of judicial
precedents. Neither did he know anything whatever of what was said on
the subject in the Constitutional Convention, unless by hearsay, for its
sessions were secret[345] and the Journals were not made public until
1819--thirty years after the Government was established, and sixteen
years after Marbury _vs._ Madison was decided.[346] Nor was Marshall
informed of the discussions of the subject in the State Conventions that
ratified the Constitution, except of those that took place in the
Virginia Convention.[347]

On the other hand, he surely had read the Judiciary debate in Congress,
for he was in the Capital when that controversy took place and the
speeches were fully reported in the Washington press. Marshall probably
was present in the Senate and the House when the most notable arguments
were made.[348] More important, however, than written decisions or
printed debates in influencing Marshall's mind was _The Federalist_,
which we know he read carefully. In number seventy-eight of that work,
Hamilton stated the principle of judicial supremacy which Marshall
whole-heartedly adopted in Marbury _vs._ Madison.

"The interpretation of the laws," wrote Hamilton, "is the proper and
peculiar province of the courts. A constitution is, in fact, and must be
regarded by the judges, as a fundamental law. It therefore belongs to
them to ascertain its meaning, as well as the meaning of any particular
act proceeding from the legislative body. If there should happen to be
an irreconcilable variance between the two, ... the Constitution ought
to be preferred to the statute, the intention of the people to the
intention of their agents."[349]

In this passage Hamilton merely stated the general understanding of
nearly all the important framers of the Constitution. Beyond question,
Marshall considered that principle to have been woven into the very
fiber of the Nation's fundamental law.

In executing his carefully determined purpose to have the Supreme Court
formally announce the exclusive power of that tribunal as the authority
of last resort to interpret the Constitution and determine the validity
of laws by the test of that instrument, Marshall faced two practical and
baffling difficulties, in addition to those larger and more forbidding
ones which we have already considered.

The first of these was the condition of the Supreme Court itself and the
low place it held in the public esteem; from the beginning it had not,
as a body, impressed the public mind with its wisdom, dignity, or
force.[350] The second obstacle was technical and immediate. Just how
should Marshall declare the Supreme Court to be the ultimate arbiter of
conflicts between statutes and the Constitution? What occasion could he
find to justify, and seemingly to require, the pronouncement as the
judgment of the Supreme Court of that opinion now imperatively demanded,
and which he had resolved at all hazards to deliver?

When the Republicans repealed the Federalist Judiciary Act of 1801,
Marshall had actually proposed to his associates upon the Supreme Bench
that they refuse to sit as circuit judges, and "risk the consequences."
By the Constitution, he said, they were Judges of the Supreme Court
only; their commissions proved that they were appointed solely to those
offices; the section requiring them to sit in inferior courts was
unconstitutional. The other members of the Supreme Court, however, had
not the courage to adopt the heroic course Marshall recommended. They
agreed that his views were sound, but insisted that, because the
Ellsworth Judiciary Act had been acquiesced in since the adoption of
the Constitution, the validity of that act must now be considered as
established.[351] So Marshall reluctantly abandoned his bold plan,
and in the autumn of 1802 held court at Richmond as circuit judge.
To the end of his life, however, he held firmly to the opinion that
in so far as the Republican Judiciary Repeal Act of 1802 deprived
National judges of their offices and salaries, that legislation was
unconstitutional.[352]

Had the circuit judges, whose offices had just been taken from them,
resisted in the courts, Marshall might, and probably would, have seized
upon the issue thus presented to declare invalid the act by which the
Republicans had overturned the new Federalist Judiciary system. Just
this, as we have seen, the Republicans had expected him to do, and
therefore had so changed the sessions of the Supreme Court that it could
not render any decision for more than a year after the new Federalist
courts were abolished.

Certain of the deposed National judges had, indeed, taken steps to bring
the "revolutionary" Republican measure before the Supreme Court,[353]
but their energies flagged, their hearts failed, and their only action
was a futile and foolish protest to the very Congress that had wrested
their judicial seats from under them.[354] Marshall was thus deprived of
that opportunity at the only time he could have availed himself of it.

A year afterward, when Marbury _vs._ Madison came up for decision, the
entire National Judiciary had submitted to the Republican repeal and was
holding court under the Act of 1789.[355] This case, then, alone
remained as the only possible occasion for announcing, at that critical
time, the supervisory power of the Judiciary over legislation.

Marshall was Secretary of State when President Adams tardily appointed,
and the Federalist Senate confirmed, the forty-two justices of the peace
for the District of Columbia,[356] and it was Marshall who had failed to
deliver the commissions to the appointees. Instead, he had, with his
customary negligence of details, left them on his desk. Scarcely had he
arrived at Richmond, after Jefferson's inauguration, when his brother,
James M. Marshall, wrote him of the plight in which the newly appointed
justices of the peace found themselves as the result of Marshall's
oversight.

The Chief Justice replied: "I learn with infinite chagrin
the 'development of principle' mentioned in yours of the
12th,"--sarcastically referring to the Administration's conduct toward
the Judiciary,--"& I cannot help regreting it the more as I fear some
blame may be imputed to me....

"I did not send out the commissions because I apprehended such as were
for a fixed time to be completed when signed & sealed & such as depended
on the will of the President might at any time be revoked. To withhold
the commission of the Marshal is equal to displacing him which the
President, I presume, has the power to do, but to withhold the
commissions of the Justices is an act of which I entertaind no
suspicion. I should however have sent out the commissions which had been
signed & sealed but for the extreme hurry of the time & the absence of
Mr. Wagner [Clerk of the State Department] who had been called on by the
President to act as his private secretary."[357]

Marshall, it thus appears, was thoroughly familiar with the matter when
the application of Marbury and his three associates came before the
Supreme Court, and took in it a keen and personal interest. By the
time[358] the case came on for final disposition the term had almost
half expired for which Marbury and his associates had been appointed.
The other justices of the peace to whom Madison had delivered
commissions were then transacting all the business that required the
attention of such officials. It was certain, moreover, that the
Administration would not recognize Marbury and his associates, no matter
what Marshall might decide. In fact, these appointees must have lost all
interest in the contest for offices of such slight dignity and such
insignificant emoluments.

So far, then, as practical results were concerned, the case of Marbury
_vs._ Madison had now come to the point where it was of no consequence
whatever to any one. It presented only theoretical questions, and, on
the face of the record, even these were as simple as they were
unimportant. This controversy, in fact, had degenerated into little more
than "a moot case," as Jefferson termed it twenty years later.[359]

At the hearing it was proved that the commissions had been signed and
sealed. One witness was Marshall's brother, James M. Marshall.
Jefferson's Attorney-General, Levi Lincoln, was excused from testifying
as to what finally became of them. Madison refused to show cause and
denied, by utterly ignoring, the jurisdiction of the Supreme Court to
direct or control him in his administration of the office of Secretary
of State.[360]

Charles Lee, former Attorney-General, counsel for the applicants, argued
the questions which he and everybody else thought were involved. He
maintained that a mandamus was the proper remedy, made so not only by
the nature of the relation of the Supreme Court to inferior courts and
ministerial officers, but by positive enactment of Congress in the
Judiciary Law of 1789. Lee pointed out that the Supreme Court had acted
on this authority in two previous cases.

Apparently the court could do one or the other of two things: it could
disavow its power over any branch of the Executive Department and
dismiss the application, or it could assert this power in cases like the
one before it and command Madison to deliver the withheld commissions.
It was the latter course that the Republicans expected Marshall to take.

If the Chief Justice should do this, Madison undoubtedly would ignore
the writ and decline to obey the court's mandate. Thus the Executive and
Judicial Departments would have been brought into direct conflict, with
every practical advantage in the hands of the Administration. The court
had no physical means to compel the execution of its order. Jefferson
would have denounced the illegality of such a decision and laughed at
the court's predicament. In short, had the writ to Madison been issued,
the court would have been powerless to enforce obedience to its own
mandate.

If, on the contrary, the court dismissed the case, the Republican
doctrines that the National courts could not direct executives to obey
the laws, and that the Judiciary could not invalidate acts of Congress,
would by acquiescence have been admitted.

No matter which horn of the dilemma Marshall selected, it was hard to
see how his views could escape impalement. He chose neither. Instead of
allowing his cherished purpose of establishing the principle of
supervisory power of the Judiciary over legislation to be thus wounded
and perhaps fatally injured, he made the decision of this insignificant
case--about which the applicants themselves no longer cared--the
occasion for asserting that principle. And he did assert that
principle--asserted it so impressively that for more than a century his
conclusion has easily withstood repeated assaults upon it, which still
continue.

Marshall accomplished his purpose by convincing the Associate Justices
of the unconstitutionality of that section of the Ellsworth Judiciary
Act of 1789[361] which expressly conferred upon the Supreme Court the
power to issue writs of mandamus and prohibition, and in persuading them
to allow him to announce that conclusion as the opinion of the court.
When we consider that, while all the Justices agreed with Marshall that
the provision of the Ellsworth Judiciary Law requiring them to sit as
circuit judges was unconstitutional, and yet refused to act upon that
belief as Marshall wanted them to act, we can realize the measure of his
triumph in inducing the same men to hold unconstitutional another
provision of the same act--a provision, too, even less open to objection
than the one they had sustained.

The theory of the Chief Justice that Section 13 of the old Judiciary Law
was unconstitutional was absolutely new, and it was as daring as it was
novel. It was the only original idea that Marshall contributed to the
entire controversy. Nobody ever had questioned the validity of that
section of the statute which Marshall now challenged. Ellsworth, who
preceded Marshall as Chief Justice, had drawn the act when he was
Senator in the First Congress;[362] he was one of the greatest lawyers
of his time and an influential member of the Constitutional Convention.

One of Marshall's associates on the Supreme Bench at that very moment,
William Paterson, had also been, with Ellsworth, a member of the Senate
Committee that reported the Judiciary Act of 1789, and he, too, had been
a member of the Constitutional Convention. Senators Gouverneur Morris
of New York, William S. Johnson of Connecticut, Robert Morris of
Pennsylvania, William Few of Georgia, George Read and Richard Bassett of
Delaware, and Caleb Strong of Massachusetts supported the Ellsworth Law
when the Senate passed it; and in the House James Madison and George
Wythe of Virginia, Abraham Baldwin of Georgia, and Roger Sherman of
Connecticut heartily favored and voted for the act. Most of these men
were thorough lawyers, and every one of them had also helped to draft
the National Constitution. Here were twelve men, many of them highly
learned in the law, makers of the Constitution, draftsmen or advocates
and supporters of the Ellsworth Judiciary Act of 1789, not one of whom
had ever dreamed that an important section of that law was
unconstitutional.[363]

Furthermore, from the organization of the Supreme Court to that moment,
the bench and bar had accepted it, and the Justices of the Supreme
Court, sitting with National district judges, had recognized its
authority when called upon to take action in a particular controversy
brought directly under it.[364] The Supreme Court itself had held that
it had jurisdiction, under Section 13, to issue a mandamus in a proper
case,[365] and had granted a writ of prohibition by authority of the
same section.[366] In two other cases this section had come before the
Supreme Court, and no one had even intimated that it was
unconstitutional.[367]

When, to his great disgust, Marshall was forced to sit as a circuit
judge at Richmond in the winter of 1802, a case came before him that
involved both the validity of the Republican Repeal Act and also the
constitutionality of that provision of the Ellsworth Judiciary Law
requiring justices of the Supreme Court to sit as circuit judges. This
was the case of Stuart _vs._ Laird. Marshall held merely that the plea
which raised these questions was insufficient, and the case was taken to
the Supreme Court on a writ of error. After extended argument Justice
Paterson delivered the opinion of the court, Marshall declining to
participate in the decision because he had "tried the cause in the court
below."[368]

At the same term, then, at which Marbury _vs._ Madison was decided, and
immediately after Marshall's opinion in that case was delivered, all the
justices of the Supreme Court except the Chief Justice, held "that
practice and acquiescence under it [the Judiciary Act of 1789] for a
period of several years, commencing with the organization of the
judicial system ... has fixed the construction. It is a contemporary
interpretation of the most forcible nature. This practical exposition is
too strong and obstinate to be shaken or controlled. Of course, the
question is at rest, and ought not now to be disturbed."[369]

But the exigency disclosed in this chapter required immediate action,
notwithstanding the obstacles above set forth. The issue raised by the
Republicans--the free hand of Congress, unrestrained by courts--must be
settled at that time or be abandoned perhaps forever. The fundamental
consideration involved must have a prompt, firm, and, if possible, final
answer. Were such an answer not then given, it was not certain that it
could ever be made. As it turned out, but for Marbury _vs._ Madison, the
power of the Supreme Court to annul acts of Congress probably would not
have been insisted upon thereafter. For, during the thirty-two years
that Marshall remained on the Supreme Bench after the decision of that
case, and for twenty years after his death, no case came before the
court where an act of Congress was overthrown; and none had been
invalidated from the adoption of the Constitution to the day when
Marshall delivered his epochal opinion. So that, as a matter of
historical significance, had he not then taken this stand, nearly
seventy years would have passed without any question arising as to the
omnipotence of Congress.[370] After so long a period of judicial
acquiescence in Congressional supremacy it seems likely that opposition
to it would have been futile.

For the reasons stated, Marshall resolved to take that step which, for
courage, statesmanlike foresight, and, indeed, for perfectly calculated
audacity, has few parallels in judicial history. In order to assert that
in the Judiciary rested the exclusive power[371] to declare any statute
unconstitutional, and to announce that the Supreme Court was the
ultimate arbiter as to what is and what is not law under the
Constitution, Marshall determined to annul Section 13 of the Ellsworth
Judiciary Act of 1789. In taking such a step the Chief Justice made up
his mind that he would sum up in final and conclusive form the reasoning
that sustained that principle.

Marshall resolved to go still further. He would announce from the
Supreme Bench rules of procedure which the Executive branch of the
Government must observe. This was indispensable, he correctly thought,
if the departments were to be harmonious branches of a single and
National Government, rather than warring factions whose dissensions must
in the end paralyze the administration of the Nation's affairs.[372]

It was not, then, Marshall's declaring an act of Congress to be
unconstitutional that was innovating or revolutionary. The extraordinary
thing was the pretext he devised for rendering that opinion--a pretext
which, it cannot be too often recalled, had been unheard of and
unsuspected hitherto. Nothing but the emergency compelling the
insistence, at this particular time, that the Supreme Court has such a
power, can fully and satisfactorily explain the action of Marshall in
holding this section void.

In his opinion the Chief Justice spoke of "the peculiar delicacy of this
case, the novelty of some of its circumstances, and the real difficulty
attending the points which occur in it."[373] He would follow, he said,
the points of counsel in the order in which they had been made.[374] Did
the applicants have a right to the commissions? This depended, he said,
on whether Marbury had been appointed to office. If so, he was entitled
to the commission which was merely the formal evidence of the
appointment. The President had nominated him to the Senate, the Senate
had confirmed the nomination, the President had signed the commission,
and, in the manner directed by act of Congress, the Secretary of State
had affixed to it the seal of the United States.[375]

The President could not recall his appointment if "the officer is not
removable." Delivery of the commission was not necessary to the
consummation of the appointment which had already been effected;
otherwise "negligence, ... fraud, fire or theft, might deprive an
individual of his office." But the truth was that "a copy from the
record ... would be, to every intent and purpose, equal to the
original."[376] The appointment of Marbury "vested in the officer legal
rights ... of his country," and "to withhold his commission is an
act ... not warranted by law, but violative of a vested legal
right....[377]

"The very essence of civil liberty," continues Marshall, "certainly
consists in the right of every individual to claim the protection of the
laws, whenever he receives an injury. One of the first duties of
government is to afford that protection." Ours has been "emphatically
termed a government of laws, and not of men. It will certainly cease to
deserve this high appellation, if the laws furnish no remedy for the
violation of a vested legal right....[378]

"The act of delivering or withholding a commission" is not "a mere
political act, belonging to the executive department alone," but a
ministerial act, the performance of which is directed by statute.
Congress had ordered the Secretary of War to place the names of certain
persons on the pension rolls; suppose that he should refuse to do so?
"Would the wounded veteran be without remedy?... Is it to be contended
that the heads of departments are not amenable to the laws of their
country?"[379]

Would any person whatever attempt to maintain that a purchaser of public
lands could be deprived of his property because a Secretary of State
withheld his patent?[380] To be sure, the President had certain
political powers and could appoint agents to aid him in the exercise of
them. The courts had no authority to interfere in this sphere of
Executive action. For example, the conduct of foreign affairs by the
Secretary of State, as the representative of the President, can never be
examinable by the courts. But the delivery of a commission to an office
or a patent to land was a different matter.

When Congress by statute peremptorily directs the Secretary of State or
any other officer to perform specific duties on which "the rights of
individuals are dependent ... he cannot at his discretion sport away the
vested rights of others." If he attempts to do so he is answerable to
the courts. "The question whether a right has vested or not, is, in its
nature, judicial, and must be tried by the judicial authority." The
court therefore was empowered to decide the point; and held that
Madison's refusal to deliver Marbury's commission was "a plain violation
of that right, for which the laws of his country afford him a
remedy."[381]

But was this remedy the writ of mandamus for which Marbury had applied?
It was, said Marshall; but could such an order be directed to the
Secretary of State? This was a task "peculiarly irksome, as well as
delicate,"[382] for, he observed, there were those who would at first
consider it "as an attempt to intrude into the cabinet, and to
intermeddle with the prerogatives of the executive." Far be it from John
Marshall to do such a thing. He need hardly "disclaim all pretensions to
such jurisdiction." Not "for a moment" would he entertain "an
extravagance so absurd and excessive.... Questions in their nature
political, ... can never be made in this court." But if the case before
him presented only questions concerning legal rights of an individual,
"what is there in the exalted station" of the Secretary of State which
"exempts him from ... being compelled to obey the judgment of the law"?
The only remaining question, therefore, was whether a mandamus could
issue from the Supreme Court.[383]

In such manner Marshall finally arrived at the examination of the
constitutionality of Section 13, which, he said, fitted the present case
"precisely"; and "if this court is not authorized to issue a writ of
mandamus" to Madison, "it must be because the law is unconstitutional,
and therefore absolutely incapable of conferring the authority."[384] In
reaching this point Marshall employs almost seven thousand words.
Fifteen hundred more words are used before he takes up the principle of
judicial supremacy over legislation.

The fundamental law of the Nation, Marshall explained, expressly defined
the original jurisdiction of the Supreme Court and carefully limited its
authority. It could take original cognizance only of specific cases. In
all others, the court was given nothing but "appellate jurisdiction."
But he omitted the words that immediately follow in the same
sentence--"with such exceptions ... as the Congress shall make." Yet
this language had, for fourteen years, apparently been considered by the
whole bench and bar as meaning, among other things, that while Congress
could _not take from_ the Supreme Court original jurisdiction in the
cases specifically named in Article Three of the Constitution, Congress
_could add_ other cases to the original jurisdiction of the Supreme
Court.

Marshall was quite conscious of all this, it would seem. In the
argument, counsel had insisted that since "the clause, assigning
original jurisdiction to the Supreme Court, contains no negative or
restrictive words, the power remains to the legislature, to assign
original jurisdiction to that court in other cases than those
specified."[385] But, reasons Marshall, in answer to this contention, if
Congress could thus enlarge the original jurisdiction of the Supreme
Court, "the subsequent part of the section[386] is mere surplusage, is
entirely without meaning, ... is form without substance.... Affirmative
words are often ... negative of other objects than those affirmed; and
in this case, a negative or exclusive sense must be given to them, _or
they have no operation at all_."[387]

That is to say, when the Constitution conferred upon the Supreme Court
original jurisdiction in specified cases, it thereby excluded all
others--denied to Congress the power to add to the jurisdiction thus
affirmatively granted. And yet, let it be repeated, by giving original
jurisdiction in cases specifically named, the Constitution put it beyond
the power of Congress to interfere with the Supreme Court in those
cases; but Marshall asserted that the specific grant of jurisdiction has
"_no operation at all_" unless "a negative or exclusive sense" be given
it.[388]

Marshall boldly held, therefore, that Section 13 of the Ellsworth
Judiciary Act was "not warranted by the Constitution." Such being the
case, ought the Supreme Court to act under this unconstitutional
section? As the Chief Justice stated the question, could "an act,
repugnant to the constitution ... become the law of the land"? After
writing nearly nine thousand words, he now reached the commanding
question: Can the Supreme Court of the United States invalidate an act
which Congress has passed and the President has approved?

Marshall avowed that the Supreme Court can and must do that very thing,
and in so doing made Marbury _vs._ Madison historic. In this, the vital
part of his opinion, the Chief Justice is direct, clear, simple, and
convincing. The people, he said, have an elemental right to establish
such principles for "their future government, as ... shall most conduce
to their own happiness." This was "the basis on which the whole American
fabric had been erected." These "permanent" and "fundamental"
principles, in the instance of the American Government, were those
limiting the powers of the various departments: "That those limits may
not be mistaken, or forgotten, the constitution is written. To what
purpose are powers limited ... if these limits may, at any time, be
passed by those intended to be restrained?"[389]

If Congress or any other department of the Government can ignore the
limitations of the Constitution, all distinction between government of
"limited and unlimited powers" is done away with. To say that "acts
prohibited and acts allowed are of equal obligation" is to deny the very
purpose for which our fundamental law was adopted. "The constitution
controls any legislative act repugnant to it." Congress cannot alter it
by legislation.[390] All this, said Marshall, was too clear to admit of
discussion, but he proceeded, nevertheless, to discuss the subject at
great length.

There is "no middle ground." The Constitution is either "a superior
paramount law" not to be changed by legislative enactment, or else "it
is on a level with the ordinary legislative acts" and, as such,
"alterable" at the will of Congress. If the Constitution is supreme,
then an act of Congress violative of it is not law; if the Constitution
is not supreme, then "written constitutions are absurd attempts, on the
part of the people, to limit a power in its own nature illimitable."
Three times in a short space Marshall insists that, for Congress to
ignore the limitations which the Constitution places upon it, is to deny
the whole theory of government under written constitutions.

Although the contention that the Judiciary must consider
unconstitutional legislation to be valid was "an absurdity too gross to
be insisted on," Marshall would, nevertheless, patiently examine
it.[391] This he did by reasoning so simple and so logical that the
dullest citizen could not fail to understand it nor the most astute
intellect escape it. But in the process he was tiresomely repetitious,
though not to so irritating an extent as he at times became.

If two laws conflict, the courts must decide between them. Where the
Constitution and an act of Congress apply to a case, "the court must
determine which ... governs [it]. This is of the very essence of
judicial duty.... If, then, ... the constitution is superior to any
ordinary act of the legislature," the Judiciary must prefer it to a mere
statute. Otherwise "courts must close their eyes on the constitution,"
and see only the legislative enactment.[392]

But to do this "would subvert the very foundation of all written
constitutions." It would be to "declare that an act which ... is
entirely void, is yet ... completely obligatory," and that Congress may
do "what is expressly forbidden." This would give to the legislature "a
practical and real omnipotence, with the same breath which professes to
restrict their powers within narrow limits." It would be "prescribing
limits, and declaring that those limits may be passed at pleasure." This
"reduces to nothing" both the letter and the theory of the Constitution.

That instrument expressly extends the judicial power to cases "arising
under the constitution." Must the courts decide such a case "without
examining the instrument under which it arises?" If the courts must
look into the Constitution at all, as assuredly they must do in some
cases, "what part of it are they forbidden to read or to obey?"

Marshall cites hypothetical examples of legislation in direct conflict
with the fundamental law. Suppose that Congress should place an export
duty on cotton, tobacco, flour, and that the Government should bring
suit to recover the tax. "Ought judgment to be rendered in such a case?"
Or if a bill of attainder should be passed and citizens prosecuted under
it, "must the court condemn to death those victims whom the constitution
endeavors to preserve?"

Take, for example, the crime of treason: the Constitution emphatically
prescribes that nobody can be convicted of this offense "unless on the
testimony of two witnesses to the same overt act, or on confession in
open court." The Judiciary particularly are addressed--"it prescribes,
directly for them, a rule of evidence not to be departed from." Suppose
that Congress should enact a law providing that a citizen might be
convicted of treason upon the testimony of one witness or by a
confession out of court? Which must the court obey--the Constitution or
the act altering that instrument?

Did not these illustrations and many others that might be given prove
that the Constitution must govern courts as well as Congress? If not,
why does the Constitution require judges "to take an oath to support
it"? That solemn obligation "applies in an especial manner to their
conduct in their official character." How "immoral" to direct them to
take this oath "if they were to be used as the instruments, and the
knowing instruments, for violating what they swear to support!" Such
contradictions and confusions would make the ceremony of taking the oath
of judicial office "a solemn mockery" and even "a crime."

There is, then, said Marshall, no escape from the conclusion "that a law
repugnant to the constitution is void," and that the judicial as well as
other departments are bound by the Constitution.[393] The application of
Marbury and others must therefore be dismissed.

Thus, by a coup as bold in design and as daring in execution as that by
which the Constitution had been framed,[394] John Marshall set up a
landmark in American history so high that all the future could take
bearings from it, so enduring that all the shocks the Nation was to
endure could not overturn it. Such a decision was a great event in
American history. State courts, as well as National tribunals,
thereafter fearlessly applied the principle that Marshall announced, and
the supremacy of written constitutions over legislative acts was firmly
established.

This principle is wholly and exclusively American. It is America's
original contribution to the science of law.[395] The assertion of it,
under the conditions related in this chapter, was the deed of a great
man. One of narrower vision and smaller courage never would have done
what Marshall did. In his management and decision of this case, at the
time and under the circumstances, Marshall's acts and words were those
of a statesman of the first rank.

His opinion gave fresh strength to the purpose of the Republican leaders
to subdue the Federalist Judiciary. It furnished Jefferson and his
radical followers a new and concrete reason for ousting from the
National Bench, and especially from the Supreme Court, all judges who
would thus override the will of Congress. Against himself, in
particular, Marshall had newly whetted the edge of Republican wrath,
already over-keen.

The trial of John Pickering, Judge of the United States Court for the
District of New Hampshire, brought by the House before the bar of the
Senate, was now pushed with cold venomousness to what Henry Adams calls
"an infamous and certainly an illegal conviction"; and then Marshall's
associate on the Supreme Bench, Justice Samuel Chase, was quickly
impeached for high crimes and misdemeanors. If the Republican
organization could force from its partisans in the Senate a verdict of
"guilty" in Chase's case also, Marshall's official head would be the
next to fall.[396]

Concerning Marshall's assertion of the power of the National Judiciary
to annul acts of Congress and to direct administrative officers in the
discharge of their legal duties, Jefferson himself said nothing at the
time. But the opinion of the Chief Justice was another ingredient thrown
into the caldron of Jefferson's heart, where a hatred was brewed that
poisoned the great politician to his latest day.

Many months after the decision in the Marbury case, Jefferson first
broke his silence. "Nothing in the Constitution has given them [the
Supreme Court] a right to decide for the Executive, more than to the
Executive to decide for them," he wrote. "The opinion which gives to the
judges the right to decide what laws are constitutional, and what not,
not only for themselves in their own sphere of action, but for the
Legislature & Executive also, in their spheres, would make the judiciary
a despotic branch."[397]

Again, during the trial of Aaron Burr,[398] Jefferson denounced Marshall
for his opinion in Marbury _vs._ Madison; and toward the close of his
life he returned again and again with corroding words to the subject
regarding which, at the moment it arose, he concealed, so far as written
words were concerned, his virulent resentment. For instance, seventeen
years later Jefferson wrote that "to consider the judges as the ultimate
arbiters of all constitutional questions ... would place us under the
despotism of an oligarchy."[399]

But for the time being, Jefferson was quiescent. His subtle mind knew
how, in political controversies, to control his tongue and pen. It could
do no good for him, personally, to make an outcry now; and it might do
harm. The doctrine which Marshall announced had, Jefferson knew, a
strong hold on all Federalists, and, indeed, on many Northern
Republicans; the bar, especially, upheld it generally.

The Presidential campaign was drawing near, and for the President openly
to attack Marshall's position would create a political issue which could
win none to the Republican cause not already fighting for it, and might
keep recruits from joining the Republican colors. Jefferson was
infinitely concerned about his reëlection and was giving practical
attention to the strengthening of his party for the approaching contest.

"I am decidedly in favor of making all the banks Republican, by sharing
deposits among them in proportion to the [political] dispositions they
show," he wrote to his Secretary of the Treasury three months after
Marshall's bold assertion of the dignity and power of the National
courts. "It is," he continued, "material to the safety of Republicanism
to detach the mercantile interests from its enemies and incorporate them
into the body of its friends."[400]

Furthermore, Jefferson was, at that particular moment, profoundly
troubled by intimate personal matters and vast National complications.
He had been trying, unsuccessfully, to adjust our dispute with France;
the radical West was becoming clamorous for a forward and even a
militant policy concerning the control of the Mississippi River, and
especially of New Orleans, which commanded the mouth of that commercial
waterway; while the Federalists, insisting upon bold measures, had a
fair prospect of winning from Jefferson's support those aggressive and
predatory frontiersmen who, until now, had stanchly upheld the
Republican standard.

Spain had ceded Louisiana to France upon the condition that the
territory never should be transferred to any other government; but
neither New Orleans nor any part of Louisiana had actually been
surrendered by the Spanish authorities. Great Britain informed the
American Government that she would not consent to the occupation by the
French of any part of Spain's possessions on the American continent.

Hating and distrusting the British, but also in terror of Napoleon,
Jefferson, who was as weak in the conduct of foreign affairs as he was
dexterous in the management of political parties, thought to escape the
predicament by purchasing the island of Orleans and perhaps a strip on
the east side of the Mississippi River.[401]

A series of events swiftly followed the decision of Marbury _vs._
Madison which enthralled the eager attention of the whole people and
changed the destiny of the Republic. Three months after Marshall
delivered his opinion, Napoleon, yielding to "the empire of
circumstances," as Talleyrand phrased it,[402] offered, and Livingston
and Monroe accepted, the whole of Louisiana for less than fifteen
million dollars. Of course France had no title to sell--Louisiana was
still legally owned and actually occupied by Spain. The United States
bought nothing more than a pretension; and, by force of propinquity and
power, made it a fact.[403]

The President was amazed when the news reached him. He did not want
Louisiana[404]--nothing was further from his mind than the purchase of
it.[405] The immorality of the acquisition affected him not at all; but
the inconvenience did. He did not know what to do with Louisiana. Worse
still, the treaty of cession required that the people living in that
territory should be admitted into the Union, "according to the
principles of the Federal Constitution."

So, to his infinite disgust, Jefferson was forced to deal with the
Louisiana Purchase by methods as vigorous as any ever advocated by the
abhorred Hamilton--methods more autocratic than those which, when done
by others, he had savagely denounced as unconstitutional and destructive
of liberty.[406] The President doubted whether, under the Constitution,
we could acquire, and was sure that we could not govern, Louisiana, and
he actually prepared amendments authorizing the incorporation into the
Republic of the purchased territory.[407] No such legal mistiness dimmed
the eyes of John Marshall who, in time, was to announce as the decision
of the Supreme Court that the Republic could acquire territory with as
much right as any monarchical government.[408]

To add to his perturbations, the high priest of popular rights found
himself compelled to abandon his adored phrase, "the consent of the
governed," upon which he had so carefully erected the structure of his
popularity, and to drive through Congress a form of government over the
people of Louisiana without consulting their wishes in the least.[409]

The Jeffersonian doctrine had been that the Union was merely a compact
between sovereign States, and that new territory and alien peoples could
not be added to it without the consent of all the partners. The
Federalists now took their stand upon this indefensible ground,[410] and
openly threatened the secession at which they had hinted when the
Federalist Judiciary Act was repealed.

Jefferson was alive to the danger: "Whatever Congress shall think it
necessary to do [about Louisiana]," he cautioned one of the Republican
House leaders, "should be done with as little debate as possible."[411]
A month earlier he wrote: "The Constitution has made no provision for
our holding foreign territory, still less for incorporating foreign
nations into our Union. The Executive ... have done an act beyond the
Constitution."[412]

Therefore, he declared, "the less we say about constitutional
difficulties respecting Louisiana the better ... What is necessary for
surmounting them must be done sub-silentio."[413] The great radical
favored publicity in affairs of state only when such a course was
helpful to his political plans. On other occasions no autocrat was ever
more secretive than Thomas Jefferson.[414] Seemingly, however, the
President was concerned only with his influence on the destiny of the
world.[415]

At first the Federalist leaders were too dazed to do more than grumble.
"The cession of Louisiana ... is like selling us a Ship after she is
surrounded by a British Fleet," shrewdly observed George Cabot, when
the news was published in Boston.[416] Fisher Ames, of course, thought
that "the acquiring of territory by money is mean and despicable,"
especially when done by Republicans. "The less of it [territory] the
better.... By adding an unmeasured world beyond that river
[Mississippi], we rush like a comet into infinite space."[417]

Soon, however, their dissatisfaction blew into flame the embers of
secession which never had become cold in their bosoms. "I am convinced,"
wrote Uriah Tracy, "that the accession of Louisiana will accelerate a
division of these States; whose whenabouts is uncertain, but somewhen is
inevitable."[418] Senator Plumer thought that the Eastern States should
form a new nation: "Adopt this western world into the Union," he said,
"and you destroy at once the weight and importance of the Eastern
States, and compel them to establish a separate and independent
empire."[419] A few days' reflection brought Ames to the conclusion that
"our country is too big for union, too sordid for patriotism, too
democratic for liberty."[420] Tapping Reeve of Connecticut made careful
inquiry among the Federalists in his vicinity and informed Tracy that
"all ... believe that we must separate, and that this is the most
favorable moment."[421]

Louisiana, however, was not the only motive of the foremost New England
Federalists for their scheme of breaking up the Republic. As we have
seen, the threat of secession was repeatedly made during the Republican
assault on the Judiciary; and now, as a fundamental cause for disunion,
the Northern Federalists speedily harked back to Jefferson's purpose of
subverting the National courts. The Republicans were ruling the Nation,
Virginia was ruling the Republicans, Jefferson was ruling all. Louisiana
would permanently turn the balance against the Northern and Eastern
States, already outweighed in the National scales; and the conquest of
the National Judiciary would remove from that section its last
protection against the pillaging hands of the Huns and Vandals of
Republicanism. So reasoned the Federalists.

What could be done to save the rights and the property of "the wise, the
rich and the good"? By what pathway could the chosen escape their doom?
"The principles of our Revolution point to the remedy," declared the
soured and flint-hearted Pickering. "The independence of the judges is
now directly assailed.... I am not willing to be sacrificed by such
popular tyrants.... I do not believe in the practicability of a
long-continued union."[422]

For the same reasons, Roger Griswold of Connecticut avowed that "there
can be no safety to the Northern States _without a separation from the
confederacy_."[423] The Reverend Jedediah Morse of New Hampshire wrote
Senator Plumer that "our empire ... must ... break in pieces. Some think
the sooner the better."[424] And the New Hampshire Senator replied: "I
hope the time is not far distant when ... the sound part will separate
from the corrupt."[425]

With the exception of John Adams, only one eminent New England
Federalist kept his head steady and his patriotism undefiled: George
Cabot, while sympathizing with his ancient party friends, frankly
opposed their mad project. Holding that secession was impracticable, he
declared: "I am not satisfied that the thing itself is to be desired. My
habitual opinions have been always strongly against it."[426]

But the expressions of such men as Pickering, Ames, and Griswold
indicated the current of New England Federalist thought and comment.
Their secession sentiment, however, did not appeal to the young men, who
hailed with joy the opportunity to occupy these new, strange lands which
accident, or Providence, or Jefferson had opened to them. Knowledge of
this was indeed one cause of the anger of some Federalist managers who
owned immense tracts in New England and in the Ohio Valley and wanted
them purchased and settled by those now turning their eyes to the
alluring farther western country.[427] They saw with something like fury
the shifting of political power to the South and West.

The management of the unwelcome Louisiana windfall, the conduct of the
National campaign, the alarming reports from New England, left Jefferson
no time to rail at Marshall or to attack that "subtle corps of sappers
and miners" who were then beginning "to undermine ... our confederated
fabric," as Jefferson declared seventeen years later.[428] For the
present the great public duty of exposing Marshall's decision in Marbury
_vs._ Madison must be deferred.

But the mills of democracy were grinding, and after he was reëlected
certain impeachments would be found in the grist that would
make all right. The defiant Marshall would at least be humbled,
perhaps--probably--removed from office. But all in good time! For the
present Jefferson had other work to do. He himself must now exercise
powers which, according to his philosophy and declarations, were far
beyond those conferred upon him by the Constitution.

So it came about that the first of Marshall's great Constitutional
opinions received scant notice at the time of its delivery. The
newspapers had little to say about it. Even the bench and the bar of the
country, at least in the sections remote from Washington, appear not to
have heard of it,[429] or, if they had, to have forgotten it amid the
thrilling events that filled the times.

Because popular interest had veered toward and was concentrated upon the
Louisiana Purchase and the renewal of war in Europe, Republican
newspapers, until then so alert to discover and eager to attack every
judicial "usurpation," had almost nothing to say of Marshall's daring
assertion of judicial supremacy which later was execrated as the very
parent of Constitutional evil. An empire had been won under Jefferson;
therefore Jefferson had won it--another proof of the far-seeing
statesmanship of "The Man of the People." Of consequence he must be
reëlected. Such was the popular logic; and reëlected Jefferson
was--triumphantly, almost unanimously.

Circumstances which had shackled his hands now suddenly freed them.
Henceforth the President could do as he liked, both personally and
politically. No longer should John Marshall, the abominated head of the
National Judiciary, rest easy on the bench which his audacity had
elevated above President and Congress. The opinion of the "usurping"
Chief Justice in Marbury _vs._ Madison should have answer at last. So on
with the impeachment trial of Samuel Chase! Let him be deposed, and
then, if Marshall would not bend the knee, that obdurate judicial
defender of Nationalism should follow Chase into desuetude and disgrace.

The incessant clamor of the Federalist past-statesmen, unheard by the
popular ear, had nevertheless done some good--all the good it ought to
have done. It had aroused misgivings in the minds of certain Northern
Republican Senators as to the expediency, wisdom, and justice of the
Republican plan to shackle or overthrow the National Judiciary. This
hesitation was, however, unknown to the masters of the Republican
organization in Congress. The Federalists themselves were totally
unaware of it. Only Jefferson, with his abnormal sensibility, had an
indistinct impression that somewhere, in the apparently perfect
alignment of the Republican forces, there was potential weakness.

Marshall was gifted with no such divination. He knew only the fate that
had been prepared for him. A crisis was reached in his career and a
determinative phase of American history entered upon. His place as Chief
Justice was to be made secure and the stability of American institutions
saved by as narrow a margin as that by which the National Constitution
had been established.


FOOTNOTES:

[308] Marshall to his wife, Jan. 2, 1803, MS.

[309] See vol. II, 502-05, of this work.

[310] Marshall to King, May 5, 1802, King, IV, 116-18.

[311] Since the adoption of the Kentucky and Virginia Resolutions in
1798. (See vol. II, chaps. X, XI, XII, of this work.)

[312] Since the Republican repeal of the Federalist Judiciary Act was
proposed. See _supra_, 51.

[313] Maryland, Pennsylvania, New Jersey, Delaware, New York, Vermont,
New Hampshire, Massachusetts, Connecticut, Rhode Island.

[314] The Federalist majority in Vermont resolved that: "It belongs not
to _State Legislatures_ to decide on the constitutionality of laws made
by the general government; this power being exclusively vested in the
_Judiciary Courts of the Union_." (_Records of Governor and Council of
Vermont_, IV, 529.)

The Federalist majority in the Maryland Legislature asserted that "no
state government ... is competent to declare an act of the federal
government unconstitutional, ... that jurisdiction ... is exclusively
vested in the courts of the United States." (Anderson, in _Am. Hist.
Rev._ V, 248.)

The New York Federalists were slow to act, but finally resolved "that
the right of deciding on the constitutionality of all laws passed by
Congress ... appertains to the judiciary department." (_Ib._ 248-49.)

Connecticut Federalists declared that the Kentucky and Virginia plan was
"hostile to the existence of our national Union." (_Ib._ 247.)

In Delaware the then dominant party decided that the Kentucky and
Virginia Resolutions were "not a fit subject" for their consideration.
(_Ib._ 246.)

The Pennsylvania Federalist majority resolved that the people "have
committed to the supreme judiciary of the nation the high authority of
ultimately and conclusively deciding the constitutionality of all
legislative acts." (Anderson, in _Am. Hist. Rev._ V, 245.)

On February 8, 1799, Massachusetts replied to the Virginia Resolutions
that: "This legislature are persuaded that the decision of all cases in
law or equity, arising under the Constitution of the United States, and
the construction of all laws made in pursuance thereof, are exclusively
vested by the people in the Judicial Courts of the U. States." (_Mass.
Senate Journal, 1798-99_, XIX, 238, MS. volume Mass. State Library.)

Such was the general tenor of the Federalists' pronouncements upon this
grave problem. But because the people believed the Sedition Law to be
directed against free speech, the Federalist supremacy in many of the
States that insisted upon these sound Nationalist principles was soon
overthrown.

The resolutions of the Republican minorities in the Legislatures of the
Federalist States were emphatic assertions that any State might declare
an act of Congress unconstitutional and disregard it, and _that the
National Judiciary did not have supervisory power over legislation_.

[315] See vol. II, 387-89, of this work.

[316] Referring to Marshall's conduct in the French Mission. (See vol.
II, chaps. VII, VIII, IX, of this work.)

[317] Anderson, in _Am. Hist. Rev._ V, 249.

[318] _Ib._ 235-37.

[319] The questions raised by the Kentucky and Virginia Resolutions were
principal themes of debate in State Legislatures, in the press, in
Congressional campaigns, and in the Presidential contest of 1800. The
Judiciary debate of 1802 was, in part, a continuance of these popular
discussions.

[320] See _supra_, 52.

[321] Within a year after Marbury _vs._ Madison was decided, Albert
Moore, one of the Federalist Associate Justices of the Supreme Court,
resigned because of ill health and his place was filled by William
Johnson, a Republican of South Carolina.

[322] See vol. I, 410, of this work.

[323] March 2, 1801.

[324] _Journal of the Executive Proceedings of the Senate_, I, 388.

[325] _Ib._ 390.

[326] _Ib._ 404. Jefferson did this because, as he said, the appointees
of Adams were too numerous.

[327] _Journal, Exec. Proc. Senate_, I, 417.

[328] See _supra_, 94-97.

[329] See _infra_, chap. IV.

[330] This belief is strikingly shown by the comment of the Republican
press. For example, just before Marshall delivered his opinion, a
correspondent of the _Independent Chronicle_ of Boston sent from
Washington this article:

"The efforts of _federalism_ to exalt the Judiciary over the Executive
and Legislature, and to give that favorite department a political
character & influence, may operate for a time to come, as it has
already, to the promotion of one party and the depression of the other;
but will probably terminate in the degradation and disgrace of the
Judiciary.

"Politics are more improper and dangerous in a Court of Justice, if
possible, than in the pulpit. Political charges, prosecutions, and
similar modes of official influence, ought never to have been resorted
to by any party. The fountains of justice should be unpolluted by party
passions and prejudices.

"The _attempt_ of the Supreme Court of the United States, by a mandamus,
to control the Executive functions, is a new experiment. It seems to be
no less than a commencement of war between the constituted departments.

"The Court must be defeated and retreat from the attack; or march on,
till they incur an impeachment and removal from office. But our
_Republican_ frame of Government is so firm and solid, that there is
reason to hope it will remain unshaken by the assaults of opposition, &
the conflicts of interfering departments.

"The will of the nation, deliberately and constitutionally expressed,
must and will prevail, the predictions and exertions of _federal_
monarchists and aristocrats to the contrary notwithstanding."
(_Independent Chronicle_, March 10, 1803.)

Marshall's opinion was delivered February 24. It took two weeks of fast
traveling to go from Washington to Boston. Ordinary mail required a few
days longer. The article in the _Chronicle_ was probably sent while
Marbury _vs._ Madison was being argued.

[331] Dodd, in _Am. Hist. Rev._ XII, 776. Under the law Marshall's
successor must come from Virginia or North Carolina.

[332] As President of the Court of Appeals of Virginia he later
challenged Marshall and brought about the first serious conflict between
the courts of a State and the supreme tribunal of the Nation; and as a
pamphleteer he assailed Marshall and his principles of Nationalism with
unsparing rigor. (See vol. IV, chaps. III, and VI, of this work.)

[333] For example, in Fletcher _vs._ Peck, Roane would have held that
the National Courts could not annul a State statute; in Martin _vs._
Hunter's Lessees and in Cohen _vs._ Virginia, that the Supreme Court
could not review the judgment of a State court; in McCulloch _vs._
Maryland, that Congress could not exercise implied powers, but only
those expressly granted by the specific terms of the Constitution, etc.
All this we know positively from Roane's own writings. (See vol. IV,
chaps. III, VI, and VII, of this work.)

[334] It seems probable, however, that it was generally understood by
the leading men of the Convention that the Judiciary was to exercise the
power of invalidating unconstitutional acts of Congress. (See Corwin:
_Doctrine of Judicial Review_, 10-11; Beard: _Supreme Court and the
Constitution_, 16-18; McLaughlin: _The Courts, the Constitution and
Parties_, 32-35.)

In the Constitutional Convention, Elbridge Gerry of Massachusetts
asserted that the judicial function of expounding statutes "involved a
power of deciding on their Constitutionality." (_Records of the Federal
Convention of 1787_: Farrand, I, 97.) Rufus King of Massachusetts--later
of New York--was of the same opinion. (_Ib._ 109.)

On the other hand, Franklin declared that "it would be improper to put
it in the power of any Man to negative a Law passed by the Legislature
because it would give him the controul of the Legislature." (_Ib._)

Madison felt "that no Man would be so daring as to place a veto on a Law
that had passed with the assent of the Legislature." (_Ib._) Later in
the debate, Madison modified his first opinion and declared that "a law
violating a constitution established by the people themselves, would be
considered by the Judges null & void." (_Ib._ II, 93.)

George Mason of Virginia said that the Judiciary "could declare an
unconstitutional law void.... He wished the further use to be made of
the Judges of giving aid in preventing every improper law." (_Ib._ 78.)

Gouverneur Morris of Pennsylvania--afterwards of New York--dreaded
"legislative usurpations" and felt that "encroachments of the popular
branch ... ought to be guarded agst." (_Ib._ 299.)

Gunning Bedford, Jr., of Delaware was against any "check on the
Legislative" with two branches. (_Ib._ I, 100-01.)

James Wilson of Pennsylvania insisted that power in the Judiciary to
declare laws unconstitutional "did not go far enough"--the judges should
also have "Revisionary power" to pass on bills in the process of
enactment. (_Ib._ II, 73.)

Luther Martin of Maryland had no doubt that the Judiciary had "a
negative" on unconstitutional laws. (_Ib._ 76.)

John Francis Mercer of Maryland "disapproved of the Doctrine that the
Judges as expositors of the Constitution should have authority to
declare a law void." (_Records, Fed. Conv._: Farrand, 298.)

John Dickinson of Delaware "thought no such power ought to exist," but
was "at a loss what expedient to substitute." (_Ib._ 299.)

Charles Pinckney of South Carolina "opposed the interference of the
Judges in the Legislative business." (_Ib._ 298.)

The above is a condensed _précis_ of all that was said in the
Constitutional Convention on this vital matter.

[335] See vol. I, 452, of this work.

[336] The Virginia Resolutions.

[337] Address of the Minority, Jan. 22, 1799, _Journal of the House of
Delegates of Virginia, 1798-99_, 90-95.

[338] Jay to Iredell, Sept. 15, 1790, enclosing statement to President
Washington, _Iredell_: McRee, 293-96; and see letter of Jay to
Washington, Aug. 8, 1793, _Jay_: Johnston, III, 488-89.

[339] See _supra_, 40, footnote 1.

[340] Wharton: _State Trials_, 715-18.

[341] Jefferson to Meusnier, Jan. 24, 1786, _Works_: Ford, V, 31-32.

[342] Jefferson to Meusnier, Jan. 24, 1786, _Works_: Ford, V, 14-15.
(Italics the author's.)

[343] For instance, the Legislature of Rhode Island formally declared
Independence almost two months before Congress adopted the pronouncement
penned by Jefferson, and Jefferson used many of the very words of the
tiny colony's defiance. In her Declaration of Independence in May, 1776,
Virginia set forth most of the reasons stated by Jefferson a few weeks
later in similar language.

[344] For these cases and references to studies of the question of
judicial supremacy over legislation, see Appendix C.

[345] See vol. I, 323, of this work.

[346] See _Records Fed. Conv._: Farrand, I, Introduction, XII.

[347] Elliot's _Debates_ were not published until 1827-30.

[348] Until very recently Justices of the Supreme Court often came to
the Senate to listen to debates in which they were particularly
interested.

[349] _The Federalist_: Lodge, 485-86. Madison also upheld the same
doctrine. Later he opposed it, but toward the end of his life returned
to his first position. (See vol. IV, chap. X, of this work.)

[350] John Jay had declined reappointment as Chief Justice because among
other things, he was "perfectly convinced" that the National Judiciary
was hopelessly weak. (See _supra_, 55.) The first Chief Justice of the
United States at no moment, during his occupancy of that office, felt
sure of himself or of the powers of the court. (See Jay to his wife,
_Jay_: Johnston, III, 420.) Jay had hesitated to accept the office as
Chief Justice when Washington tendered it to him in 1789, and he had
resigned it gladly in 1795 to become the Federalist candidate for
Governor of New York.

Washington offered the place to Patrick Henry, who refused it. (See
Henry: _Patrick Henry--Life, Correspondence and Speeches_, II, 562-63;
also Tyler, I, 183.) The office was submitted to William Cushing, an
Associate Justice of the Supreme Court, and he also refused to consider
it. (Wharton: _State Trials_, 33.) So little was a place on the Supreme
Bench esteemed that John Rutledge resigned as Associate Justice to
accept the office of Chief Justice of the Supreme Court of South
Carolina. (_Ib._ 35.)

Jefferson considered that the government of New Orleans was "the second
office in the United States in importance." (Randal, III, 202.) For that
matter, no National office in Washington, except the Presidency, was
prized at this period. Senator Bailey of New York actually resigned his
seat in the Senate in order to accept the office of Postmaster at New
York City. (_Memoirs, J. Q. A._: Adams, I, 290.) Edmund Randolph, when
Attorney-General, deplored the weakening of the Supreme Court, and
looked forward to the time when it should be strengthened. (Randolph to
Washington, Aug. 5, 1792, _Writings of George Washington_: Sparks, X,
513.)

The weakness of the Supreme Court, before Marshall became Chief Justice,
is forcibly illustrated by the fact that in designing and building the
National Capitol that tribunal was entirely forgotten and no chamber
provided for it. (See Hosea Morrill Knowlton in _John Marshall--Life,
Character and Judicial Services_: Dillon, I, 198-99.) When the seat of
government was transferred to Washington, the court crept into an humble
apartment in the basement beneath the Senate Chamber.

[351] _New York Review_, III, 347. The article on Chief Justice Marshall
in this periodical was written by Chancellor James Kent, although his
name does not appear.

[352] See vol. IV, chap. IX.

[353] See Tilghman to Smith, May 22, 1802, Morison: _Smith_, 148-49.

"A general arrangement [for action on behalf of the deposed judges] will
be attempted before we separate. It is not descrete to say more at
present." (Bayard to Bassett, April 19, 1802, _Bayard Papers_: Donnan,
153.)

[354] See "Protest of Judges," _American State Papers, Miscellaneous_,
I, 340.

Writing to Wolcott, now one of the displaced National circuit judges
(Wolcott's appointment was secured by Marshall; see vol. II, 559, of
this work), concerning "the outrage committed by Congress on the
Constitution" (Cabot to Wolcott, Dec. 20, 1802, Lodge: _Cabot_, 328),
Cabot said: "I cannot but approve the intention of your judicial corps
to unite in a memorial or remonstrance to Congress." He considered this
to be "a manifest duty" of the judges, and gave Wolcott the arguments
for their action. (Cabot to Wolcott, Oct. 21, 1802, _ib._ 327-28.)

A proposition to submit to the Supreme Court the constitutionality of
the Repeal Act was rejected January 27, 1803. (_Annals_, 7th Cong. 2d
Sess. 439.)

[355] See _infra_, 130, 131.

[356] See _supra_, 110.

[357] Marshall to James M. Marshall, March 18, 1801, MS.

[358] February, 1803.

[359] Jefferson to Johnson, June 12, 1823, _Works_: Ford, XII, footnote
to 256.

[360] See 1 Cranch, 137-80.

[361] Section 13 provided, among other things, that "the Supreme
Court ... shall have power to issue writs of prohibition to the district
courts ... and writs of _mandamus_, in cases warranted by the principles
and usages of law, to any courts appointed, or persons holding office,
under the authority of the United States." (_U.S. Statutes at Large_, I,
73; _Annals_, 1st Cong. 2d Sess. 2245.)

[362] See _supra_, 53-54.

[363] See Dougherty: _Power of the Federal Judiciary over Legislation_,
82.

Professor Corwin says that not many years later Marshall concurred in an
opinion of the Supreme Court which, by analogy, recognized the validity
of it. (Corwin, 8-9.)

[364] U.S. _vs._ Ravara, 2 Dallas, 297.

[365] U.S. _vs._ Lawrence, 3 Dallas, 42.

[366] U.S. _vs._ Peters, _ib._ 121.

[367] In the argument of Marbury _vs._ Madison, Charles Lee called
Marshall's attention to the case of U.S. _vs._ Hopkins, in the February
term, 1794, in which a motion was made for a mandamus to Hopkins as loan
officer for the District of Virginia, and to the case of one John
Chandler of Connecticut, also in February, 1794, in which a motion was
made in behalf of Chandler for a mandamus to the Secretary of War. These
cases do not seem to have been reported, and Lee must have referred to
manuscript records of them. (See 1 Cranch, 148-49.)

Samuel W. Dana of Connecticut also referred to the Chandler case during
the Judiciary debate in the House, March, 1802. (See _Annals_, 7th Cong.
1st Sess. 903-04.)

[368] 1 Cranch, 308.

[369] Stuart _vs._ Laird, 1 Cranch, 309.

[370] The next case in which the Supreme Court overthrew an act of
Congress was that of Scott _vs._ Sandford--the famous Dred Scott case,
decided in 1857. In this case the Supreme Court held that Congress had
no power to prohibit slavery in the territory purchased from France in
1803 (the Louisiana Purchase), and that the Act of March 6, 1820, known
as the Missouri Compromise, was unconstitutional, null, and void. (See
Scott _vs._ Sandford, 19 Howard, 393 _et seq._)

[371] The President can veto a bill, of course, on the ground of
unconstitutionally; but, by a two thirds vote, Congress can pass it over
the Executive's disapproval.

[372] Carson, I, 203; and see especially Adams: _U.S._ I, 192.

[373] 1 Cranch, 154.

[374] This seems to have been inaccurate. Compare Lee's argument with
Marshall's opinion.

[375] 1 Cranch, 158.

[376] 1 Cranch, 160.

[377] _Ib._ 162.

[378] _Ib._ 163.

[379] _Ib._ 164.

[380] _Ib._ 165.

[381] 1 Cranch, 166-68.

[382] _Ib._ 169.

[383] 1 Cranch, 170.

[384] _Ib._ 173.

[385] 1 Cranch, 174.

[386] In all "other cases ... the Supreme Court shall have appellate
jurisdiction ... with such exceptions ... as the Congress shall make."

[387] _Ib._ 174. (Italics the author's.)

[388] 1 Cranch, 176. This particular part of the text adopts Professor
Edward S. Corwin's careful and accurate analysis of Marshall's opinion
on this point. (See Corwin, 4-10.)

[389] 1 Cranch, 176.

[390] _Ib._ 176-77.

[391] 1 Cranch, 177.

[392] _Ib._ 178.

[393] 1 Cranch, 178-80.

[394] See vol. I, 323, of this work.

[395] It must be borne in mind that the American Constitution declares
that, in and of itself, it is law--the supreme law of the land; and that
no other written constitution makes any such assertion.

[396] See _infra_, chap. IV.

[397] Jefferson to Mrs. Adams, Sept. 11, 1804, _Works_: Ford, X,
footnote to 89.

[398] See _infra_, chap. VIII.

[399] Jefferson to Jarvis, Sept. 28, 1820, _Works_: Ford, XII, 162. Yet,
at the time when he was founding the Republican Party, Jefferson had
written to a friend that "the laws of the land, administered by upright
judges, would protect you from any exercise of power unauthorized by the
Constitution of the United States." (Jefferson to Rowan, Sept. 26, 1798,
_ib._ VIII, 448.)

[400] Jefferson to Gallatin, July 12, 1803, _Works_: Ford, X, 15-16. It
should be remembered that most of the banks and the financial and
commercial interests generally were determined opponents of Jefferson
and Republicanism. As a sheer matter of "practical politics," the
President cannot be fairly criticized for thus trying to weaken his
remorseless foes.

[401] See Channing: _U.S._ IV, 313-14.

[402] Talleyrand to Decrès, May 24, 1803, as quoted in Adams: _U.S._ II,
55.

[403] Morison: _Otis_, I, 262; see also Adams: _U.S._ II, 56.

[404] See instructions to Livingston and Monroe, _Am. State Papers,
Foreign Relations_, II, 540.

[405] Adams: _U.S._ I, 442-43.

[406] _Ib._ II, 120-28.

[407] _Works_: Ford, X, 3-12.

[408] American Insurance Company _et al._ _vs._ Canter, 1 Peters,
511-46, and see vol. IV, chap. III, of this work.

[409] See _U.S. Statutes at Large_, II, 283; and _Annals_, 8th Cong. 2d
Sess. 1597.

[410] For instance, Senator Plumer, two years later, thus stated the old
Republican doctrine which the Federalists, in defiance of their party's
creed and traditions, had now adopted as their own: "We cannot admit a
new partner into the Union, from without the original limits of the
United States, without the consent, first obtained, of each of the
partners composing the firm." (Plumer to Smith, Feb. 7, 1805, Plumer,
328.)

[411] Jefferson to Nicholas, Sept. 7, 1803, _Works_: Ford, X, 10.

[412] Jefferson to Breckenridge, Aug. 12, 1803, _ib._ 7.

[413] Jefferson to Madison, Aug. 18, 1803, _ib._ 8.

[414] "The medicine for that State [North Carolina] must be very mild &
secretly administered." (Jefferson to Nicholas, April 7, 1800, _ib._ IX,
129; and see Adams: _U.S._ III, 147.)

[415] "The millenium was to usher in upon us as the irresistible
consequence of the goodness of heart, integrity of mind, and correctness
of disposition of Mr. Jefferson. All nations, even pirates and savages,
were to be moved by the influence of his persuasive virtue and masterly
skill in diplomacy." (Eaton's account of a call on President Jefferson,
1803, _Life of the Late Gen. William Eaton_: Prentiss, 263; also quoted
in Adams: _U.S._ II, 431.)

[416] Cabot to King, July 1, 1803, King, IV, 279. The Louisiana Purchase
was first publicly announced through the press by the _Independent
Chronicle_ of Boston, June 30, 1803. (Adams: _U.S._ II, 82-83.)

[417] Ames to Gore, Oct. 3, 1803, Ames, I, 323-24.

[418] Tracy to McHenry, Oct. 19, 1803, Steiner: _Life and Correspondence
of James McHenry_, 522.

[419] Oct. 20, 1803, Plumer, 285.

[420] Ames to Dwight, Oct. 26, 1803, Ames, I, 328.

[421] Reeve to Tracy, Feb. 7, 1804, _N.E. Federalism_: Adams, 342; and
see Adams: _U.S._ II, 160.

Members of Congress among the Federalists and Republicans became so
estranged that they boarded in different houses and refused to associate
with one another. (Plumer, 245, 336.)

[422] Pickering to Cabot, Jan. 29, 1804, Lodge: _Cabot_, 338.

[423] Griswold to Wolcott, March 11, 1804, _N.E. Federalism_: Adams,
356.

[424] Morse to Plumer, Feb. 3, 1804, Plumer, 289.

[425] Plumer to Morse, March 10, 1804, _ib._

[426] Cabot to King, March 17, 1804, Lodge: _Cabot_, 345.

[427] See Morison: _Otis_, I, 262.

[428] Jefferson to Ritchie, Dec. 25, 1820, _Works_: Ford, XII, 177.

[429] For instance, in 1808, the United States District Court of
Massachusetts, in the decision of a case requiring all possible
precedents like that of Marbury _vs._ Madison, did not so much as refer
to Marshall's opinion, although every other case that could be found was
cited. Marbury _vs._ Madison, long afterwards, was added in a footnote
to the printed report. (McLaughlin, 30, citing _Am. Law Journal_, old
series, II, 255-64.)

Marshall's opinion in Marbury _vs._ Madison was first referred to by
counsel in a legal controversy in _Ex Parte_ Burford, 1806 (3 Cranch,
448). Robert Goodloe Harper next cited it in his argument for Bollmann
(4 Cranch, 86; and see _infra_, chap. VII). Marshall referred to it in
his opinion in that case, and Justice William Johnson commented upon it
at some length.

A year later Marshall's opinion in Marbury _vs._ Madison was cited by
Jefferson's Attorney-General, Cæsar A. Rodney. In the case _Ex Parte_
Gilchrist _et al. vs._ The Collector of the Port of Charleston, S.C. (5
Hughes, 1), the United States Court for that circuit, consisting of
Johnson, Associate Justice of the Supreme Court, and the Judge of the
District Court, granted a mandamus under the section of the Judiciary
Act which Marshall and the entire court had, five years before, declared
to be unconstitutional, so far as it conferred original jurisdiction
upon the Supreme Court in applications for mandamus.

Rodney wrote to the President a letter of earnest protest, pointing out
the fact that the court's action in the Gilchrist case was in direct
antagonism to the opinion in Marbury _vs._ Madison. But Jefferson was
then so savagely attacking Marshall's rulings in the Burr trial (see
_infra_, chaps. VII, VIII, IX) that he was, at last, giving public
expression of his disapproval of the opinion of the Chief Justice in
Marbury _vs._ Madison. He did not even answer Rodney's letter.




CHAPTER IV

IMPEACHMENT

    The judges of the Supreme Court must fall. Our affairs approach
    an important crisis. (William Plumer.)

    These articles contained in themselves a virtual impeachment of
    not only Mr. Chase but of all the Judges of the Supreme Court.
    (John Quincy Adams.)

    We shall bring forward such a specimen of judicial tyranny, as,
    I trust in God, will never be again exhibited in our country.
    (John Randolph.)

    We appear for an ancient and infirm man whose better days have
    been worn out in the service of that country which now degrades
    him. (Joseph Hopkinson.)

    Our property, our liberty, our lives can only be protected by
    independent judges. (Luther Martin.)


"We _want your offices_, for the purpose of giving them to men who will
fill them better." In these frank words, Senator William Branch
Giles[430] of Virginia stated one of the purposes of the Republicans in
their determined attack on the National Judiciary. He was speaking to
the recently elected young Federalist Senator from Massachusetts, John
Quincy Adams.[431]

They were sitting before the blazing logs in the wide fireplace that
warmed the Senate Chamber. John Randolph, the Republican leader of the
House, and Israel Smith, a Republican Senator from Vermont, were also in
the group. The talk was of the approaching trial of Samuel Chase,
Associate Justice of the Supreme Court of the United States, whom the
House had impeached for high crimes and misdemeanors. Giles and Randolph
were, "with excessive earnestness," trying to convince the doubting
Vermont Senator of the wisdom and justice of the Republican method of
ousting from the National Bench those judges who did not agree with the
views of the Republican Party.

Giles scorned the idea of "an _independent_ judiciary!" The independence
claimed by the National judges was "nothing more nor less than an
attempt to establish an aristocratic despotism in themselves." The power
of the House to impeach, and of the Senate to try, any public officer
was unlimited.

"If," continued Giles, "the Judges of the Supreme Court should dare, _as
they had done_, to declare acts of Congress unconstitutional, or to send
a mandamus to the Secretary of State, _as they had done_, it was the
undoubted right of the House to impeach them, and of the Senate to
remove them for giving such opinions, however honest or sincere they may
have been in entertaining them." He held that the Senate, when trying an
impeached officer, did not act as a court. "Removal by impeachment was
nothing more than a declaration by Congress to this effect: You hold
dangerous opinions, and if you are suffered to carry them into effect
you will work the destruction of the Nation."[432]

Thus Giles made plain the Republican objective. Judges were to be
removed for any cause that a dominant political party considered to be
sufficient.[433] The National Judiciary was, in this manner, to be made
responsive to the popular will and responsible to the representatives of
the people in the House and of the States in the Senate.[434]

Giles, who was now Jefferson's personal representative in the
Senate,[435] as he had been in the House, bore down upon his mild but
reluctant fellow partisan from Vermont in a "manner dogmatical and
peremptory." Not only must the aggressive and irritating Chase be
stripped of his robes, but the same fate must fall upon "all other
Judges of the Supreme Court except the one last appointed,"[436] who,
being a Republican, was secure.[437] Adams rightly concluded that the
plan was to "have swept the supreme judicial bench clean at a
stroke."[438]

For a long time everybody had understood that the impeachment of Chase
was only the first step in the execution of the Republican plan to
replace with Republicans Marshall and the four Federalist Associate
Justices. "The judges of the Supreme Court are all Federalists," wrote
Pickering six weeks before Johnson's appointment. "They stand in the way
of the ruling power.... The Judges therefore, are, if possible, to be
removed," by impeachment.[439]

Nearly two years before, Senator William Plumer of New Hampshire had
accurately divined the Republican plan: "The judges of the Supreme Court
must fall," he informed Jeremiah Mason. "They are _denounced_ by the
Executive, as well as the House. They must be removed; they are
obnoxious unyielding men; & why should they remain to awe & embarrass
the administration? Men of more flexible nerves can be found to succeed
them. Our affairs seem to approach an important crisis."[440] The
Federalists rightly believed that Jefferson was the directing mind in
planning and effecting the subjugation of the National Judiciary. That,
said Bayard, "has been an object on which Mr. Jefferson has long been
resolved, at least ever since he has been in office."[441]

[Illustration]

John Marshall especially must be overthrown.[442] He had done all the
things of which Giles and the Republicans complained. He had "dared to
declare an act of Congress unconstitutional," had "dared" to order
Madison to show cause why he should not be compelled to do his legal
duty. Everybody was at last awake to the fact that Marshall had become
the controlling spirit of the Supreme Court and of the whole National
Judiciary.

Every one knew, too, that he was the most determined Nationalist in the
entire country, and that Jefferson and the Republican Party had no more
unyielding enemy than the Chief Justice. And he had shown by his
management of the Supreme Court and by his opinion in Marbury _vs._
Madison, how powerful that tribunal could be made. The downfall of
Samuel Chase was a matter of small importance compared with the removal
of John Marshall.

"They hate Marshall, Paterson, etc. worse than they hate Chase because
they are men of better character," asserted Judge Jeremiah Smith of New
Hampshire. "To be safe in these times good men must not only resign
their offices but they must resign their good names.... They will be
obnoxious as long as they retain _either_. If they will neither die nor
resign they give Mr J the trouble of correcting the _procedure_.... Tell
me what the judges say--are they frightened?" he anxiously inquired of
Plumer.[443] Frightened they were--and very badly frightened. Even John
Marshall, hitherto imperturbable and dauntless, was shaken.[444]

In addition to his "heretical" opinion in Marbury _vs._ Madison,
Marshall had given the Republicans, and Jefferson especially, another
cause for complaint. A year after the decision of that case, he had
again gone out of his way to announce from the Supreme Bench the fallacy
of Jefferson's Constitutional views and the soundness of the Nationalist
theory. During the February term of the Supreme Court for the year 1804,
that tribunal, in the case of the United States _vs._ Fisher,[445] was
called upon to decide whether the United States was a preferred creditor
of an insolvent, under the Bankruptcy Act of 1800, which Marshall had
helped to draw.[446] Among other objections, it was suggested by counsel
for Fisher, the insolvent, that the Bankruptcy Law was unconstitutional
and that the priority which that act gave the Nation over other
creditors of the bankrupt would prevent the States from making similar
laws for their own protection.

But, said Marshall, this is "the necessary consequence of the supremacy
of the laws of the United States on all subjects to which the
legislative power of the United States extends.... The Constitution did
not prohibit Congress" from enacting a bankruptcy law and giving the
Nation preference as a creditor. On the contrary, Congress was expressly
authorized "to make all laws which shall be necessary and proper to
carry into execution the powers vested by the Constitution in the
National Government." To say that "no law was authorized which was not
indispensably necessary ... would produce endless difficulties....
Congress must possess the choice of means and must be empowered to use
any means which are, in fact, conducive to the exercise of a power
granted by the Constitution."

This was an emphatic denial of Jefferson's famous opinion on the power
of Congress to charter a bank, and an outright assertion of the views of
Hamilton on that celebrated question.[447] The case could have been
decided without such an expression from the court, but it presented an
opportunity for a judicial statement of liberal construction which might
not soon come again,[448] and Marshall availed himself of it.

For two years no part of the Republican plans against the Judiciary had
miscarried. Close upon the very day when John Breckenridge in the Senate
had moved to repeal the National Judiciary Act of 1801, a petition
signed by the enraged Republicans of Alleghany County, Pennsylvania, had
been sent to the Legislature of that State, demanding the impeachment of
Alexander Addison; and almost simultaneously with the passage of the
Judiciary Repeal Act of Congress, the Pennsylvania House of
Representatives transmitted to the State Senate articles charging the
able but arrogant Federalist judge with high crimes and misdemeanors.

Addison's trial speedily followed; and while the evidence against him,
viewed through the perspective of history, seems trivial, the Republican
Pennsylvania Senate pronounced judgment against him and deposed him from
the bench. With notable ability, Addison conducted his own defense. He
made a powerful speech which is a classic of conservative
philosophy.[449] But his argument was unavailing. The Republican theory,
that a judge might be deposed from office for any conduct or opinion of
which the Legislature disapproved, was ruthlessly carried out.[450]

Almost as soon as Congress convened after the overthrow of the obnoxious
Pennsylvania Federalist judge, the Republicans in the National House,
upon representations from Jefferson, took steps to impeach John
Pickering, Judge of the United States Court for the District of New
Hampshire.[451] This judge had been hopelessly insane for at least
three years and, as one result of his mental and nervous malady, had
become an incurable drunkard.[452] In this condition he had refused to
hear witnesses for the Government in the case of the ship Eliza, seized
for violation of the revenue laws. He peremptorily ordered the vessel
returned to its captain, and finally declined to allow an appeal from
his decree. All this had been done with ravings, cursings, and crazed
incoherences.[453]

That he was wholly incapacitated for office and unable to perform any
act requiring intelligence was conceded by all. But the Constitution
provided no method of removing an officer who had become insane.[454]
This defect, however, gave the Republicans an ideal opportunity to put
into practice their theory that impeachment was unrestricted and might
be applied to any officer whom, for any reason, two thirds of the Senate
deemed undesirable. "If the facts of his denying an appeal & of his
intoxication, as stated in the impeachment, are proven, that will be
sufficient cause for removal without further enquiry," asserted
Jefferson when assured that Pickering was insane, and when asked
"whether insanity was good cause for impeachment & removal from
office."[455]

The demented judge did not, of course, appear at his trial. Instead, a
petition by his son was presented, alleging the madness of his father,
and praying that evidence to that effect be received by the Senate.[456]
This plea was stoutly resisted, and for two days the question was
debated. "The most persevering and determined opposition is made against
having evidence and counsel to prove the man insane," records John
Quincy Adams, "only from the fear, that if insanity should be proved, he
cannot be convicted of _high crimes and misdemeanors_ by acts of
decisive madness."[457] Finally the determined Republicans proceeded to
the trial of the insane judge for high crimes and misdemeanors, evidence
of his dethroned reason to be received "in mitigation."[458] In immense
disgust the House managers withdrew, because "the Senate had determined
_to hear evidence_" that the accused person was insane. Before they
returned, they publicly denounced the Senators for their leniency; and
thus Republican discipline was restored.[459]

Jefferson was impatient. "It will take two years to try this
impeachment," he complained to Senator Plumer. "The Constitution ought
to be altered," he continued, "so that the President should be
authorized to remove a Judge from office, on the address of the two
Houses."[460] But the exasperated Republicans hastened the proceedings;
and the trial did not consume two weeks all told.

If an insane man should be condemned, "it will not hereafter be
necessary," declared Senator Samuel Smith of Maryland, "that a man
should be guilty of high crimes and misdemeanors," the commission of
which was the only Constitutional ground for impeachment. Senator
Jonathan Dayton of New Jersey denounced the whole proceeding as "a mere
mockery of a trial."[461] Senator John Quincy Adams, in the flurry of
debate, asserted that he should "speak until [his] mouth was stopped by
force."[462] Senator Nicholas of Virginia shouted "Order! order! order!"
when Samuel White of Delaware was speaking. So furious became the
altercation that a duel seemed possible.[463] No delay was permitted
and, on March 12, 1804, the demented Pickering was, by a strictly
partisan vote of 19 to 7,[464] adjudged guilty of high crimes and
misdemeanors.

An incident happened which was prophetic of a decline in the marvelous
party discipline that had kept the Republicans in Senate and House in
solid support of the plans of the leaders. Three Republican Senators
left the Chamber in order to avoid the balloting.[465] They would not
adjudge an insane man to be guilty of high crimes and misdemeanors, but
they were not yet independent enough to vote against their party.[466]
This, however, did not alarm the Republican managers. They instantly
struck the next blow upon which they had determined more than two years
before. Within an hour after John Pickering was convicted the House
voted to impeach Samuel Chase.

Marshall's irascible associate on the Supreme Bench had given the
Republicans a new and serious cause for hostilities against him. In less
than two months after Marshall had delivered the unanimous opinion of
the Supreme Court in Marbury _vs._ Madison, Justice Chase, in charging
the grand jury at Baltimore, denounced Republican principles and
mercilessly assailed Republican acts and purposes.

This judicial critic of democracy told the grand jury that "the
bulk of mankind are governed by their passions, and not by reason....
The late alteration of the federal judiciary ... and the recent
change in our state constitution, by the establishing of universal
suffrage, ... will ... take away all security for property and personal
liberty ... and our republican constitution will sink into a mobocracy,
the worst of all popular governments."

Chase condemned "the modern doctrines by our late reformers, that all
men, in a state of society, are entitled to enjoy equal liberty and
equal rights, [which] have brought this mighty mischief upon us";--a
mischief which he feared "will rapidly progress, until peace and order,
freedom and property, shall be destroyed.... Will justice be impartially
administered by judges dependent on the legislature for their ...
suport? Will liberty or property be protected or secured, by laws made
by representatives chosen by electors, who have no property in, or a
common interest with, or attachment to, the community?"[467]

Burning with anger, a young Republican member of the Maryland
Legislature, John Montgomery, who had listened to this judicial tirade,
forthwith savagely denounced Chase in the _Baltimore American_.[468] He
demanded that the Justice be impeached and removed from the bench.[469]
Montgomery hastened to send to the President[470] a copy of the paper.

Jefferson promptly wrote Nicholson: "Ought this seditious and official
attack on the principles of our Constitution, and on the proceedings of
a State, go unpunished? And, to whom so pointedly as yourself will the
public look for the necessary measures?"

But Jefferson was not willing to appear openly. With that uncanny power
of divining political currents to which coarser or simpler minds were
oblivious, he was conscious of the uneasiness of Northern Republicans
over ruthless impeachment and decided not to become personally
responsible. "For myself," he cautioned Nicholson, "it is better that I
should not interfere."[471]

Upon the advice of Nathaniel Macon,[472] Republican Speaker of the
House, Nicholson concluded that it would be more prudent for another to
take the lead. It was well understood that he was to have Chase's place
on the Supreme Bench,[473] and this fact would put him at a disadvantage
if he became the central figure in the fight against the aged Justice.
The procurement of the impeachment was, therefore, placed in the eager
hands of John Randolph, that "unusual Phenomenon," as John Adams called
him,[474] whose lust for conspicuous leadership was insatiable.

The Republican managers had carefully moulded public opinion into the
belief that Chase was guilty of some monstrous crime. Months before
articles of impeachment were presented to the House, _ex parte_
statements against him were collected, published in pamphlet form, and
scattered throughout the country. To assure wider publicity all this
"evidence" was printed in the Republican organ at Washington. The
accused Justice had, therefore, been tried and convicted by the people
before the charges against him were even offered in the House.[475]

This preparation of the popular mind accomplished, Chase was finally
impeached. Eight articles setting forth the Republican accusations were
laid before the Senate. Chase was accused of everything of which
anybody had complained since his appointment to the Supreme Bench. His
conduct at the trials of Fries and Callender was set forth with tedious
particularity: in Delaware he had stooped "to the level of an informer";
his charge to the grand jury at Baltimore was an "intemperate and
inflamatory political harangue"; he had prostituted his "high judicial
character ... to the low purpose of an electioneering partizan"; his
purpose was "to excite ... odium ... against the government."[476]

This curious scramble of fault-finding, which was to turn out so fatally
for the prosecution, was the work of Randolph. When the conglomerate
indictment was drawn, no one, except perhaps Jefferson, had the faintest
idea that the Republican plan would miscarry; Randolph's multifarious
charges pleased those in Virginia, Pennsylvania, Delaware, and Maryland
who had first made them; they were so drawn as to lay a foundation for
the assault which was to follow immediately. "These articles," wrote
John Quincy Adams, "contained in themselves a virtual impeachment not
only of Mr. Chase, but of all the Judges of the Supreme Court from the
first establishment of the national judiciary."[477]

In an extended and carefully prepared speech, Senator Giles, who had
drawn the rules governing the conduct of the trial in the Senate,
announced the Republican view of impeachment which, he said, "is nothing
more than an enquiry, by the two Houses of Congress, whether the office
of any public man might not be better filled by another." Adams was
convinced that "this is undoubtedly the source and object of Mr. Chase's
impeachment, and on the same principle any officer may easily be removed
at any time."[478]

From the time the House took action against Chase, the Federalists were
in despair. "I think the Judge will be removed from Office," was Senator
Plumer's opinion.[479] "The event of the impeachment is already
determined," wrote Bayard before the trial began.[480] Pickering was
certain that Chase would be condemned--so would any man that the House
might impeach; such "measures ... are made questions of _party_, and
therefore at all events to be carried into effect according to the
wishes of the prime mover [Jefferson]."[481]

As the day of the arraignment of the impeached Justice approached, his
friends were not comforted by their estimate of the public temper. "Our
public ... will be as tame as Mr. Randolph can desire," lamented Ames.
"You may broil Judge Chase and eat him, or eat him raw; it shall stir up
less anger or pity, than the Six Nations would show, if Cornplanter or
Red Jacket were refused a belt of wampum."[482]

When finally Chase appeared before the bar of the Senate, he begged that
the trial should be postponed until next session, in order that he might
have time to prepare his defense. His appeal fell on remorseless ears;
the Republicans gave him only a month. But this scant four weeks proved
fatal to their purpose. Jefferson's wise adjustment of the greatest
financial scandal in American history[483] came before the House during
this interval; and fearless, honest, but impolitic John Randolph
attacked the Administration's compromise of the Yazoo fraud with a
ferocity all but insane in its violence. Literally screaming with rage,
he assailed Jefferson's Postmaster-General who was lobbying on the floor
of the House for the passage of the President's Yazoo plan, and
delivered continuous philippics against that polluted transaction out of
which later came the third of John Marshall's most notable
opinions.[484]

In this frame of mind, nervously exhausted, physically overwrought and
troubled, the most brilliant and effective Congressional partisan
leader of our early history came to the trial. Moreover, Randolph had
broken with the Administration and challenged Jefferson's hitherto
undisputed partisan autocracy. This was the first public manifestation
of that schism in the Republican Party which was never entirely healed.

Such was the situation on the 4th of February, 1805, when the Senate
convened to hear and determine the case of Samuel Chase, impeached by
the House for high crimes and misdemeanors, to settle by the judgment it
should render the fate of John Marshall as Chief Justice of the United
States, and to fix forever the place of the National Judiciary in the
scheme of American government.

"Oyez! Oyez! Oyez!--All persons are commanded to keep silence on pain of
imprisonment, while the grand inquest of the nation is exhibiting to the
Senate of the United States, sitting as a Court of Impeachments,
articles of impeachment against Samuel Chase, Associate Justice of the
Supreme Court of the United States."[485]

So cried the Sergeant-at-Arms of the National Senate when, in the Chase
trial, John Marshall, the Supreme Court, and the whole National
Judiciary were called to judgment by Thomas Jefferson, on the bleak
winter day in dismal, scattered, and quarreling Washington. An audience
crowded the Senate Chamber almost to the point of suffocation. There
were present not only the members of Senate and House, the officers of
the Executive departments, and the men and women of the Capital's
limited society, but also scores of eminent persons from distant parts
of the country.[486]

Among the spectators were John Marshall and the Associate Justices of
the Supreme Court, thoroughly conscious that they, and the institution
of which they were the highest representatives, were on trial almost as
much as their imprudent, rough, and outspoken fellow member of the
Bench. It is not improbable that they were helping to direct the defense
of Chase,[487] in which, as officials, they were personally interested,
and in which, too, all their convictions as citizens and jurists were
involved.

[Illustration: LETTER TO SAMUEL CHASE (_Facsimile_)]

Marshall, aroused, angered, and frightened by the articles of the
impeachment, had written his brother a year before the Chase trial that
they are "sufficient to alarm the friends of a pure, and, of course, an
independent Judiciary, if, among those who rule our land there be any of
that description."[488] At the beginning of the proceedings Chase had
asked Marshall, who was then in Richmond, to write an account of what
occurred at the trial of Callender, and Marshall promptly responded: "I
instantly applied to my brother[489] & to Mr. Wickham[490] to state
their recollection of the circumstances under which Colo. Taylors
testimony was rejected.[491] They both declared that they remembred them
very imperfectly but that they woud endeavor to recollect what passed
& commit it to writing. I shall bring it with me to Washington in
february." Marshall also promised to bring other documents.

"Admitting it to be true," continues Marshall, "that on legal principles
Colo. Taylors testimony was admissible, it certainly constitutes a very
extraordinary ground for an impeachment. According to the antient
doctrine a jury finding a verdict against the law of the case was liable
to an attaint; & the amount of the present doctrine seems to be that a
Judge giving a legal opinion contrary to the opinion of the legislature
is liable to impeachment.

"As, for convenience & humanity the old doctrine of attaint has yielded
to the silent, moderate but not less operative influence of new trials,
I think the modern doctrine of impeachment should yield to an appellate
jurisdiction in the legislature. A reversal of those legal opinions
deemed unsound by the legislature would certainly better comport with
the mildness of our character than [would] a removal of the Judge who
has rendered them unknowing of his fault.

"The other charges except the 1st & 4th which I suppose to be altogether
unfounded, seem still less to furnish cause for impeachment. But the
little finger of [blotted out--probably "democracy"] is heavier than the
loins of ----.[492]

"Farewell--With much respect and esteem....

                                                   "J. MARSHALL."[493]

Marshall thus suggested the most radical method for correcting judicial
decisions ever advanced, before or since, by any man of the first class.
Appeals from the Supreme Court to Congress! Senators and Representatives
to be the final judges of any judicial decision with which a majority of
the House was dissatisfied! Had we not the evidence of Marshall's
signature to a letter written in his well-known hand, it could not be
credited that he ever entertained such sentiments. They were in direct
contradiction to his reasoning in Marbury _vs._ Madison, utterly
destructive of the Federalist philosophy of judicial control of
legislation.

The explanation is that Marshall was seriously alarmed. By his own pen
he reveals to us his state of mind before and on that dismal February
day when he beheld Samuel Chase arraigned at the bar of the Senate of
the United States. During the trial Marshall's bearing as a witness[494]
again exhibited his trepidation. And, as we have seen, he had good cause
for sharp anxiety.[495]

The avowed Republican purpose to remove him and his Federalist
associates from the Supreme Bench, the settled and well-known intention
of Jefferson to appoint Spencer Roane as Chief Justice when Marshall was
ousted, and the certainty that this would be fatal to the execution of
those fundamental principles of government to which Marshall was so
passionately devoted--these important considerations fully warranted the
apprehension which the Chief Justice felt and now displayed.

Had he been indifferent to the peril that confronted him and the whole
National Judiciary, he would have exhibited a woeful lack of sense and
feeling. He was more than justified in resorting to any honorable
expedient to save the great office he held from occupancy by a resolute
and resourceful foe of those Constitutional theories, the application of
which, Marshall firmly believed, was indispensable to the sound
development of the American Nation.

The arrangements for the trial were as dramatic as the event itself was
momentous.[496] The scenes of the impeachment prosecution of Warren
Hastings were still vivid in the minds of all, and in imitation of that
spectacle, the Senate Chamber was now bedecked with impressive splendor.
It was aglow with theatrical color, and the placing of the various seats
was as if a tragic play were to be performed.

To the right and left of the President's chair were two rows of benches
with desks, the whole covered with crimson cloth. Here sat the
thirty-four Senators of the United States. Three rows of benches,
arranged in tiers, extended from the wall toward the center of the room;
these were covered with green cloth and were occupied by the members of
the House of Representatives. Upon their right an enclosure had been
constructed, and in it were the members of Jefferson's Cabinet.

Beneath the permanent gallery to which the general public was admitted,
a temporary gallery, supported by pillars, ran along the wall, and
faced the crimson-covered places of the Senators. At either end of it
were boxes. Comfortable seats had been provided in this enclosure; and
these were covered with green cloth, which also was draped over the
balustrade.

This sub-gallery and the boxes were filled with ladies dressed in the
height of fashion. A passageway was left from the President's chair to
the doorway. On either side of this aisle were two stalls covered with
blue cloth, as were also the chairs within them. They were occupied by
the managers of the House of Representatives and by the lawyers who
conducted the defense.[497]

A short, slender, elegantly formed man, with pallid face and steady
black eyes, presided over this Senatorial Court. He was carefully
dressed, and his manners and deportment were meticulously correct. Aaron
Burr, fresh from his duel with Hamilton, and under indictment in two
States, had resumed his duties as Vice-President. Nothing in the bearing
of this playwright character indicated in the smallest degree that
anything out of the ordinary had happened to him. The circumstance of
his presence, however, dismayed even the most liberal of the New England
Federalists. "We are indeed fallen on evil times," wrote Senator Plumer.
"The high office of President is filled by an _infidel_, that of
Vice-President by a _murderer_."[498]

For the first time since the Republican victory of 1800, which, but for
his skill, courage, and energy in New York, would not have been
achieved,[499] Burr now found himself in favor with the Administration
and the Republican chieftains.[500] Jefferson determined that Aaron Burr
must be captured--at least conciliated. He could not be displaced as the
presiding officer at the Chase impeachment trial; his rulings would be
influential, perhaps decisive; the personal friendship and admiration of
several Senators for him were well known; the emergency of the
Republican Party was acute. Chase must be convicted at all hazards; and
while nobody but Jefferson then doubted that this would be the result,
no chances were to be taken, no precaution overlooked.

The President had rewarded the three principal witnesses against
Pickering with important and lucrative offices[501] after the insane
judge had been removed from the bench. Indeed he had given the vacated
judgeship to one of these witnesses. But such an example Jefferson well
knew would have no effect upon Burr; even promises would avail nothing
with the man who for nearly three years had suffered indignity and
opposition from an Administration which he, more than any one man except
Jefferson himself, had placed in power.

So it came about that Vice-President Aaron Burr, with only four weeks of
official life left him, with the whole North clamorous against him
because of his killing of Hamilton and an indictment of murder hanging
over him in New Jersey, now found himself showered with favors by those
who owed him so much and who, for nearly four years, had so grossly
insulted him.

Burr's stepson, his brother-in-law, his most intimate friend, were
forthwith appointed to the three most valuable and commanding offices in
the new government of the Louisiana Territory, at the attractive city of
New Orleans.[502] The members of the Cabinet became attentive to Burr.
The President himself exercised his personal charm upon the fallen
politician. Time after time Burr was now invited to dine with Jefferson
at the Executive Mansion.

Nor were Presidential dinners, the bestowal of patronage hitherto
offensively refused, and attentions of the Cabinet, the limit of the
efforts to win the coöperation of the man who was to preside over the
trial of Samuel Chase. Senator Giles drew a petition to the Governor of
New Jersey begging that the prosecution of Burr for murder be dropped,
and to this paper he secured the signature of nearly all the Republican
Senators.[503]

Burr accepted these advances with grave and reserved dignity; but he
understood the purpose that inspired them, did not commit himself, and
remained uninfluenced and impartial. Throughout the momentous trial the
Vice-President was a model presiding officer. "He conducted with the
dignity and impartiality of an angel, but with the rigor of a devil,"
records a Washington newspaper that was bitterly hostile to Burr
personally and politically.[504]

When Chase took his place in the box, the Sergeant-at-Arms brought him a
chair; but Burr, adhering to the English custom, which required
prisoners to stand when on trial in court, ordered it to be taken
away.[505] Upon the request of the elderly Justice, however, Burr
quickly relented and the desired seat was provided.[506]

Chase was, in appearance, the opposite of the diminutive and graceful
Vice-President. More than six feet tall, with thick, broad, burly
shoulders, he was a picture of rugged and powerful physical manhood,
marred by an accumulation of fat which his generous manner of living had
produced. Also he was afflicted with an agonizing gout, with which it
seems so many of "the fathers" were cursed. His face was broad and
massive, his complexion a brownish red.[507] "Bacon face" was a nickname
applied to him by the Maryland bar.[508] His head was large, his brow
wide, and his hair was thick and white with the snows of his sixty-four
winters.[509]

The counsel that surrounded the impeached Justice were brilliant and
learned.[510] They were Joseph Hopkinson, who six years before, upon
Marshall's return from France, had written "Hail Columbia; or, The
President's March"; Philip Barton Key, brother of the author of "The
Star-Spangled Banner";[511] Robert Goodloe Harper, one of the Federalist
leaders in Congress during the ascendancy of that party; and Charles
Lee, Attorney-General under President Adams when Marshall was Secretary
of State, and one of Marshall's most devoted friends.[512]

But in the chair next to Chase sat a man who, single-handed and alone,
was more than a match for all the managers of the House put together.
Luther Martin of Maryland--of medium height, broad-shouldered,
near-sighted, absent-minded, shabbily attired, harsh of voice, now
sixty-one years old, with gray hair beginning to grow thin and a face
crimsoned by the brandy which he continually imbibed--was the dominating
figure of this historic contest.[513]

Weary and harried as he was, Randolph opened the trial with a speech of
some skill. He contrasted the conduct of Chase in the trial of Callender
with that of Marshall in a trial in Richmond in 1804 at which Marshall
had presided. "Sir," said Randolph, "in the famous case of Logwood,[514]
whereat the Chief Justice of the United States presided, I was present,
being one of the grand jury who found a true bill against him.... The
government was as deeply interested in arresting the career of this
dangerous and atrocious criminal, who had aimed his blow against the
property of every man in society, as it could be in bringing to
punishment a weak and worthless scribbler [Callender]."

But how had Marshall acted in the conduct of that trial? "Although,"
continued Randolph, "much testimony was offered by the prisoner, which
did by no means go to his entire exculpation, although much of that
testimony was of a very questionable nature, none of it was declared
_inadmissable_." Marshall suffered it "to go to the jury, who were left
to judge of its weight and credibility"; nor had he required "any
interrogatories to the witnesses ... to be reduced to writing,"--such a
thing never had been done in Virginia before the tyrannical ruling of
Chase in the trial of Callender.

"No, Sir!" he cried. "The enlightened man who presided in Logwood's case
knew that, although the basest and vilest of criminals, he was entitled
to _justice_, equally with the most honorable member of society."
Marshall "did not avail himself of the previous and great discoveries in
criminal law, of this respondent [Chase]"; Marshall "admitted the
prisoner's testimony to go to the jury"; Marshall "never thought it _his
right_ or _his duty_ to require questions to be reduced to writing";
Marshall "gave the accused _a fair trial_ according to law and usage,
without any innovation or departure from the established rules of
criminal jurisprudence in his country."

Marshall's gentle manner and large-minded, soft-spoken rulings as a
trial judge were thus adroitly made to serve as an argument for the
condemnation of his associate, and for his own undoing if Chase should
be convicted. Randolph denounced "the monstrous pretension that an act
to be impeachable must be indictable. Where? In the Federal Courts?
There, not even robbery and murder are indictable."

[Illustration: JOHN RANDOLPH]

A judge could not, under the National law, be indicted for conducting a
National court while drunk, and perhaps not in all State courts. "It
is indictable nowhere for him to omit to do his duty, to refuse to hold
a court. But who can doubt that both are impeachable offenses, and ought
to subject the offender to removal from office?"

The autocrat of Congress then boldly announced to the Republican
Senators that the House managers "confidently expect on his [Chase's]
conviction.... We shall bring forward ... such a specimen of judicial
tyranny, as, I trust in God, will never be again exhibited in our
country."[515]

Fifty-two witnesses were examined. It was established that, in the trial
of Fries, Chase had written the opinion of the court upon the law before
the jury was sworn, solely in order to save time; had withdrawn the
paper and destroyed it when he found Fries's counsel resented the
court's precipitate action; and, finally, had repeatedly urged them to
proceed with the defense without restriction. Chase's inquisitorial
conduct in Delaware was proved, and several witnesses testified to the
matter and manner of his charge to the Baltimore grand jury.[516]

Every incident in the trial of Callender[517] was described by numerous
witnesses.[518] George Hay, who had been the most aggressive of
Callender's counsel, was so anxious to help the managers that he made a
bad impression on the Senate by his eagerness.[519] It developed that
the whole attitude of Chase had been one of sarcastic contempt; and that
Callender's counsel were more piqued by the laughter of the spectators
which the witty sallies and humorous manner of the Justice excited, than
they were outraged by any violence on Chase's part, or even by what they
considered the illegal and oppressive nature of his rulings.

When, in defending Callender, Hay had insisted upon "a literal recital
of the parts [of _The Prospect Before Us_] charged as libellous," Chase,
looking around the court-room, said with an ironical smile: "It is
contended ... that the book ought to be copied _verbatim et literatim_,
I wonder, ... that _they_ do not contend for _punctuatim_ too."[520] The
audience laughed. Chase's interruption of Wirt[521] by calling the young
lawyer's "syllogistical" conclusion a "_non sequitur_, sir," was
accompanied by an inimitable "bow" that greatly amused the listeners.

In short, the interruptions of the sardonic old Justice were, as John
Taylor of Caroline testified, in "a very high degree imperative,
satirical, and witty ... [and] extremely well calculated to abash and
disconcert counsel."[522]

Among the witnesses was Marshall's brother William, whom President Adams
had appointed clerk of the United States Court at Richmond.[523] His
testimony was important on one point. One John Heath, a Richmond
attorney and a perfect stranger to Chase, had sworn that Chase, in his
presence, had asked the United States Marshal, David M. Randolph, "if he
had any of those creatures or people called democrats on the panel of
the jury to try Callender"; that when the Marshal replied that he had
"made no discrimination," the Judge told him "to look over the panel
and if there were any of that description, strike them off."

William Marshall, on the contrary, made oath that Chase told him that he
hoped even Giles would serve on the jury--"Nay, he wished that Callender
might be tried by a jury of his own politics." David M. Randolph then
testified that he had never seen Heath in the Judge's chambers, that
Chase "never at any time or place" said anything to him about striking
any names from the jury panel, and that he never received "any
instructions, verbal, or by letter, from Judge Chase in relation to the
grand jury."[524]

John Marshall himself was then called to the stand and sworn. Friendly
eye-witnesses record that the Chief Justice appeared to be frightened.
He testified that Colonel Harvie, with whom he "was intimately
acquainted,"[525] had asked him to get the Marshal to excuse Harvie from
serving on the jury because "his mind was completely made up ... and
whatever the evidence might be, he should find the traverser not
guilty." When Marshall told this to the court official, the latter said
that Harvie must apply to the Judge, because he "was watched," and "to
prevent any charge of improper conduct" he would not discharge any of
the jury whom he had summoned. Marshall then induced Chase to release
Harvie "upon the ground of his being sheriff of Henrico County and that
his attendance was necessary" at the county court then in session.

Marshall said that he was in court during a part of the Callender trial
and that "there were several circumstances that took place ... on the
part both of the bar and the bench which do not always occur at
trials.... The counsel appeared ... to wish to argue to the jury that
the Sedition Law was unconstitutional. Mr. Chase said that that was not
a proper question to go to the jury"; and that whenever Callender's
attorneys began to argue to the contrary the court stopped them.

The Chief Justice further testified that George Hay had addressed the
court to the effect that in this ruling Chase was "not correct in point
of law," and again the Judge "stopped him"; that "Mr. Hay still went on
and made some political observations; Judge Chase stopped him again and
the collision ended by Mr. Hay sitting down and folding up his papers as
if he meant to retire."

Marshall did not recollect "precisely," although it appeared to him that
"whenever Judge Chase thought the counsel incorrect in their points, he
immediately told them so and stopped them short." This "began early in
the proceedings and increased. On the part of the judge it seemed to be
a disgust with regard to the mode adopted by the traverser's counsel,
at least ... as to the part which Mr. Hay took in the trial."

Randolph asked Marshall whether it was the practice for courts to hear
counsel argue against the correctness of rulings; and Marshall replied
that "if counsel have not been already heard, it is usual to hear them
in order that they may change or confirm the opinion of the court, when
there is any doubt entertained." But there was "no positive rule on the
subject and the course pursued by the court will depend upon
circumstances: Where the judge believes that the point is perfectly
clear and settled he will scarcely permit the question to be agitated.
However, it is considered as decorous on the part of the judge to listen
while the counsel abstain from urging unimportant arguments."

Marshall was questioned closely as to points of practice. His answers
were not favorable to his Associate Justice. Did it appear to him that
"the conduct of Judge Chase was mild and conciliatory" during the trial
of Callender? Marshall replied that he ought to be asked what Chase's
conduct was and not what he thought of it. Senator William Cocke of
Tennessee said the question was improper, and Randolph offered to
withdraw it. "No!" exclaimed Chase's counsel, "we are willing to abide
in this trial by the opinion of the Chief Justice." Marshall declared
that, except in the Callender trial, he never heard a court refuse to
admit the testimony of a witness because it went only to a part and not
to the whole of a charge.

Burr asked Marshall: "Do you recollect whether the conduct of the judge
at this trial was tyrannical, overbearing and oppressive?" "I will state
the facts," cautiously answered the Chief Justice. "Callender's counsel
persisted in arguing the question of the constitutionality of the
Sedition Law, in which they were constantly repressed by Judge Chase.
Judge Chase checked Mr. Hay whenever he came to that point, and after
having resisted repeated checks, Mr. Hay appeared to be determined to
abandon the cause, when he was desired by the judge to proceed with his
argument and informed that he should not be interrupted thereafter.

"If," continued Marshall, "this is not considered tyrannical, oppressive
and overbearing, I know nothing else that was so." It was usual for
courts to hear counsel upon the validity of rulings "not solemnly
pronounced," and "by no means usual in Virginia to try a man for an
offense at the same term at which he is presented"; although, said
Marshall, "my practice, while I was at the bar was very limited in
criminal cases."

"Did you ever hear Judge Chase apply any unusual epithets--such as
'_young men_' or '_young gentlemen_'--to counsel?" inquired Randolph. "I
have heard it so frequently spoken of since the trial that I cannot
possibly tell whether my recollection of the term is derived from
expressions used in court, or from the frequent mention since made of
them." But, remarked Marshall, having thus adroitly placed the burden on
the irresponsible shoulders of gossip, "I am rather inclined to think
that I did hear them from the judge." Randolph then drew from Marshall
the startling and important fact that William Wirt was "about thirty
years of age and a widower."[526]

Senator Plumer, with evident reluctance, sets down in his diary a
description from which it would appear that Marshall's manner affected
the Senate most unfavorably. "John Marshall is the Chief Justice of the
Supreme Court of the United States. I was much better pleased with the
manner in which his brother testified than with him.

"The Chief Justice really discovered too much caution--too much
fear--too much cunning--He ought to have been more bold--frank &
explicit than he was.

"There was in his manner an evident disposition to accommodate the
Managers. That dignified frankness which his high office required did
not appear. A cunning man ought never to discover the arts of the
_trimmer_ in his testimony."[527]

Plainly Marshall was still fearful of the outcome of the Republican
impeachment plans, not only as to Chase, but as to the entire Federalist
membership of the Supreme Court. His understanding of the Republican
purpose, his letter to Chase, and his manner on the stand at the trial
leave no doubt as to his state of mind. A Republican Supreme Court, with
Spencer Roane as Chief Justice, loomed forbiddingly before him.

Chase was suffering such agony from the gout that, when the testimony
was all in, he asked to be released from further attendance.[528] Six
days before the evidence was closed, the election returns were read and
counted, and Aaron Burr "declared Thomas Jefferson and George Clinton to
be duly elected to the respective offices of President and
Vice-President of the United States."[529] For the first time in our
history this was done publicly; on former occasions the galleries were
cleared and the doors closed.[530]

Throughout the trial Randolph and Giles were in frequent
conference--judge and prosecutor working together for the success of the
party plan.[531] On February 20 the arguments began. Peter Early of
Georgia spoke first. His remarks were "chiefly declamatory."[532] He
said that the conduct of Chase exhibited that species of oppression
which puts accused citizens "at the mercy of _arbitrary and overbearing
judges_." For an hour and a half he reviewed the charges,[533] but he
spoke so badly that "most of the members of the other House left the
chamber & a large portion of the spectators the gallery."[534]

George Washington Campbell of Tennessee argued "long and
tedious[ly]"[535] for the Jeffersonian idea of impeachment which he held
to be "a kind of an inquest into the conduct of an officer ... and the
effects that his conduct ... may have on society." He analyzed the
official deeds of Chase by which "the whole community seemed shocked....
Future generations are interested in the event."[536] He spoke for parts
of two days, having to suspend midway in the argument because of
exhaustion.[537] Like Early, Campbell emptied the galleries and drove
the members of the House, in disgust, from the floor.[538]

Joseph Hopkinson then opened for the defense. Although but thirty-four
years old, his argument was not surpassed,[539] even by that of
Martin--in fact, it was far more orderly and logical than that of
Maryland's great attorney-general. "We appear," began Hopkinson, "for an
ancient and infirm man, whose better days have been worn out in the
service of that country which now degrades him." The case was "of
infinite importance," truly declared the youthful attorney. "The
faithful, the scrutinizing historian, ... without fear or favor" will
render the final judgment. The House managers were following the British
precedent in the impeachment of Warren Hastings; but that celebrated
prosecution had not been instituted, as had that of Chase, on "a petty
catalogue of frivolous occurrences, more calculated to excite ridicule
than apprehension, but for the alleged murder of princes and plunder of
empires"; yet Hastings had been acquitted.

In England only two judges had been impeached in half a century, while
in the United States "seven judges have been prosecuted criminally in
about two years." Could a National judge be impeached merely for "error,
mistake, or indiscretion"? Absurd! Such action could be taken only for
"an indictable offense." Thus Hopkinson stated the master question of
the case. In a clear, closely woven argument, the youthful advocate
maintained his ground.

The power of impeachment by the House was not left entirely to the
"opinion, whim, or caprice" of its members, but was limited by other
provisions of the fundamental law. Chase was not charged with treason,
bribery, or corruption. Had any other "high crimes and misdemeanors"
been proved or even stated against him? He could not be impeached for
ordinary offenses, but only for "high crimes and high misdemeanors."
Those were legal and technical terms, "well understood and defined in
law.... A misdemeanor or a crime ... is an act committed or omitted, in
violation of a _public_ law either forbidding or commanding it. By this
test, let the respondent ... stand justified or condemned."

The very nature of the Senatorial Court indicated "the grade of offenses
intended for its jurisdiction.... Was such a court created ... to scan
and punish paltry errors and indiscretions, too insignificant to have a
name in the penal code, too paltry for the notice of a court of quarter
sessions? This is indeed employing an elephant to remove an atom too
minute for the grasp of an insect."

Had Chase transgressed any State or National statute? Had he violated
the common law? Nobody claimed that he had. Could any judge be firm,
unbiased, and independent if he might at any time be impeached "on the
mere suggestions of caprice ... condemned by the mere voice of
prejudice"? No! "If his nerves are of iron, they must tremble in so
perilous a situation."

Hopkinson dwelt upon the true function of the Judiciary under free
institutions. "All governments require, in order to give them firmness,
stability, and character, some permanent principle, some settled
establishment. The want of this is the great deficiency in republican
institutions." In the American Government an independent, permanent
Judiciary supplied this vital need. Without it "nothing can be relied
on; no faith can be given either at home or abroad." It was also "a
security from oppression."

All history proved that republics could be as tyrannical as despotisms;
not systematically, it was true, but as the result of "sudden gust of
passion or prejudice.... If we have read of the death of a Seneca under
the ferocity of a Nero, we have read too of the murder of a Socrates
under the delusion of a Republic. An independent and firm Judiciary,
protected and protecting by the laws, would have snatched the one from
the fury of a despot, and preserved the other from the madness of a
people."[540] So spoke Joseph Hopkinson for three hours,[541] made
brief and brilliant by his eloquence, logic, and learning.

Philip Barton Key of Washington, younger even than Hopkinson, next
addressed the Senatorial Court. He had been ill the day before[542] and
was still indisposed, but made an able speech. He analyzed, with
painstaking minuteness, the complaints against his client, and cleverly
turned to Chase's advantage the conduct of Marshall in the Logwood
case.[543] Charles Lee then spoke for the defense; but what he said was
so technical, applying merely to Virginia legal practice of the time,
that it is of no historical moment.[544]

When, on the next day, February 23, Luther Martin rose, the Senate
Chamber could not contain even a small part of the throng that sought
the Capitol to hear the celebrated lawyer. If he "_only_ appeared in
defense of a friend," said Martin, he would not be so gravely concerned;
but the case was plainly of highest possible importance, not only to all
Americans then living, but to "posterity." It would "establish a most
important precedent as to future cases of impeachment." An error now
would be fatal.

For what did the Constitution authorize the House to impeach and the
Senate to try an officer of the National Government? asked Martin. Only
for "an indictable offense." Treason and bribery, specifically named in
the Constitution as impeachable offenses, were also indictable. It was
the same with "other high crimes and misdemeanors," the only additional
acts for which impeachment was provided. To be sure, a judge might do
deeds for which he could be indicted that would not justify his
impeachment, as, for instance, physical assault "provoked by insolence."
But let the House managers name one act for which a judge could be
impeached that did not also subject him to indictment.

Congress could pass a law making an act criminal which had not been so
before; but such a law applied only to deeds committed after, and not to
those done before, its passage. Yet if an officer might, years after the
event, be impeached, convicted, and punished for conduct perfectly legal
at the time, "could the officers of Government ever know how to
proceed?" Establish such a principle and "you leave your judges, and all
your other officers, at the mercy of the prevailing party."

Had Chase "used _unusual_, rude and _contemptuous_ expressions towards
the prisoner's counsel" in the Callender case, as the articles of
impeachment charged? Even so, this was "rather a violation of the
principles of politeness, than the principles of law; rather the want of
decorum, than the commission of a _high crime and misdemeanor_." Was a
judge to be impeached and removed from office because his deportment was
not elegant?

The truth was that Callender's counsel had not acted in his interest and
had cared nothing about him; they had wished only "to hold up the
prosecution as oppressive" in order to "excite public indignation
against the court and the Government." Had not Hay just testified that
he entertained "no hopes of convincing the court, and scarcely the
faintest expectation of inducing the jury to believe that the sedition
law was unconstitutional"; but that he had wished to make an "impression
upon the public mind.... What barefaced, what unequalled hypocrisy doth
he admit that he practiced on that occasion! What egregious trifling
with the court!" exclaimed Martin.

When Chase had observed that Wirt's syllogism was a "_non sequitur_,"
the Judge, it seems, had "bowed." Monstrous! But "as _bows_, sir,
according to the manner they are _made_, may ... convey very different
meanings," why had not the witness who told of it, "given us a _fac
simile_ of it?" The Senate then could have judged of "the propriety" of
the bow. "But it seems this _bow_, together with the '_non sequitur_'
entirely discomfitted poor Mr. Wirt, and down he sat 'and never word
spake more!'" By all means let Chase be convicted and removed from the
bench--it would never do to permit National judges to make bows in any
such manner!

But alas for Chase! He had committed another grave offense--he had
called William Wirt "_young_ gentleman" in spite of the fact that Wirt
was actually thirty years old and a widower. Perhaps Chase did not know
"of these circumstances"; still, "if he had, considering that Mr. Wirt
was a widower, he certainly erred on the right side ... in calling _him_
a _young_ gentleman."[545]

When the laughter of the Senate had subsided, Martin, dropping his
sarcasm, once more emphasized the vital necessity of the independence of
the Judiciary. "We boast" that ours is a "government of laws. But how
can it be such, unless the laws, while they exist, are sacredly and
impartially, without regard to popularity, carried into execution?" Only
independent judges can do this. "Our property, our liberty, our lives,
can only be protected and secured by such judges. With this honorable
Court it remains, whether we shall have such judges!"[546]

Martin spoke until five o'clock without food or any sustenance, "except
two glasses of wine and water"; he said he had not even breakfasted that
morning, and asked permission to finish his argument next day.

When he resumed, he dwelt on the liberty of the press which Chase's
application of the Sedition Law to Callender's libel was said to
have violated. "My honorable client with many other respectable
characters ... considered it [that law] as a wholesome and necessary
restraint" upon the licentiousness of the press.[547] Martin then quoted
with telling effect from Franklin's denunciation of newspapers.[548]
"Franklin, himself a printer," had been "as great an advocate for the
liberty of the press, as any reasonable man ought to be"; yet he had
"declared that unless the slander and calumny of the press is restrained
by some other law, it will be restrained by club law." Was not that
true?

If men cannot be protected by the courts against "base calumniators,
they will become their own avengers. And to the bludgeon, the sword or
the pistol, they will resort for that purpose." Yet Chase stood
impeached for having, as a judge, enforced the law against the author of
"one of the most flagitious libels ever published in America."[549]

Throughout his address Martin mingled humor with logic, eloquence with
learning.[550] Granted, he said, that Chase had used the word "damned"
in his desultory conversation with Triplett during their journey in a
stage. "However it may sound elsewhere in the United States, I cannot
apprehend it will be considered _very_ offensive, _even_ from the mouth
of a judge on this side of the Susquehanna;--to the southward of that
river it is in familiar use ... supplying frequently the place of the
word 'very' ... connected with subjects the most pleasing; thus we say
indiscriminately a very good or a damned good bottle of wine, a damned
good dinner, or a damned clever fellow."[551]

Martin's great speech deeply impressed the Senate with the ideas that
Chase was a wronged man, that the integrity of the whole National
Judicial establishment was in peril, and that impeachment was being used
as a partisan method of placing the National Bench under the rod of a
political party. And all this was true.

Robert Goodloe Harper closed for the defense. He was intolerably
verbose, but made a good argument, well supported by precedents. In
citing the example which Randolph had given as a good cause for
impeachment--the refusal of a judge to hold court--Harper came near,
however, making a fatal admission. This, said Harper, would justify
impeachment, although perhaps not an indictment. Most of his speech was
a repetition of points already made by Hopkinson, Key, and Martin. But
Harper's remarks on Chase's charge to the Baltimore grand jury were new,
that article having been left to him.

"Is it not lawful," he asked, "for an aged patriot of the Revolution to
warn his fellow-citizens of dangers, by which he supposes their
liberties and happiness to be threatened?" That was all that Chase's
speech from the bench in Baltimore amounted to. Did his office take from
a judge "the liberty of speech which belongs to every citizen"? Judges
often made political speeches on the stump--"What law forbids [them] to
exercise these rights by a charge from the bench?" That practice had
"been sanctioned by the custom of this country from the beginning of the
Revolution to this day."

Harper cited many instances of the delivery by judges of political
charges to grand juries, beginning with the famous appeal to the people
to fight for independence from British rule, made in a charge to a South
Carolina grand jury in 1776.[552]

The blows of Chase's strong counsel, falling in unbroken succession, had
shaken the nerve of the House managers. One of these, Joseph H.
Nicholson of Maryland, now replied. Posterity would indeed be the final
judge of Samuel Chase. Warren Hastings had been acquitted; "but is there
any who hears me, that believes he was innocent?" The judgment of the
Senate involved infinitely more than the fortunes of Chase; by it "must
ultimately be determined whether justice shall hereafter be impartially
administered or whether the rights of the citizen are to be prostrated
at the feet of overbearing and tyrannical judges."

Nicholson denied that the House managers had "resorted to the forlorn
hope of contending that an impeachment was not a criminal prosecution,
but a mere inquest of office.... If declarations of this kind have been
made, in the name of the Managers, I here disclaim them. We do contend
that this is a criminal prosecution, for offenses committed in the
discharge of high official duties."[553]

The Senate was dumbfounded, the friends of Chase startled with joyful
surprise; a gasp of amazement ran through the overcrowded Chamber!
Nicholson had abandoned the Republican position--and at a moment when
Harper had all but admitted it to be sound. What could this mean but
that the mighty onslaughts of Martin and Hopkinson had disconcerted the
managers, or that Republican Senators were showing to the leaders signs
of weakening in support of the party doctrine.

At any rate, Nicholson's admission was an irretrievable blunder. He
should have stoutly championed his party's theory upon which Chase had
been impeached and thus far tried, ignored the subject entirely, or
remained silent. Sadly confused, he finally reversed his argument and
swung back to the original Republican theory.

He cited many hypothetical cases where an officer could not be haled
before a criminal court, but could be impeached. One of these must have
furnished cause for secret mirth to many a Senator: "It is possible,"
said Nicholson, "that the day may arrive when a President of the United
States ... may endeavor to influence [Congress] by holding out threats
or inducements to them.... The hope of an office may be held out to a
Senator; and I think it cannot be doubted, that for this the President
would be liable to impeachment, although there is no positive law
forbidding it."

Lucky for Nicholson that Martin had spoken before him and could not
reply; fortunate for Jefferson that the "impudent Federal Bulldog,"[554]
as the President afterward styled Martin, could not now be heard. For
his words would have burned the paper on which the reporters transcribed
them. Every Senator knew how patronage and all forms of Executive
inducement and coercion had been used by the Administration in the
passage of most important measures--the Judiciary repeal, the Pickering
impeachment, the Yazoo compromise, the trial of Chase. From the floor of
the House John Randolph had just denounced, with blazing wrath,
Jefferson's Postmaster-General for offering Government contracts to
secure votes for the Yazoo compromise.[555]

For two hours and a half Nicholson continued,[556] devoting himself
mainly to the conduct of Chase during the trial of Fries. He closed by
pointing out the inducements to a National judge to act as a tyrannical
tool of a partisan administration--the offices with which he could be
bribed, the promotions by which he could be rewarded. The influence of
the British Ministry over the judges has been "too flagrant to be
mistaken." For example, in Ireland "an overruling influence has crumbled
[an independent judiciary] into ruins. The demon of destruction has
entered their courts of justice, and spread desolation over the land.
Execution has followed execution, until the oppressed, degraded and
insulted nation has been made to tremble through every nerve, and to
bleed at every pore."

The fate of Ireland would be that of America, if an uncontrolled
Judiciary were allowed to carry out, without fear of impeachment, the
will of a high-handed President, in order to win the preferments he had
to offer. Already "some of our judges have been elevated to places of
high political importance.... Let us nip the evil in the bud, or it may
grow to an enormous tree, bearing destruction upon every branch."[557]

Cæsar A. Rodney of Delaware strove to repair the havoc Nicholson had
wrought; he made it worse. The trial was, he said, "a spectacle truly
solemn and impressive ... a trial of the first importance, because of
the first impression; ... a trial ... whose novelty and magnitude have
excited so much interest ... that it seems to have superseded for the
moment, not only every other grave object or pursuit, but every other
fashionable amusement or dissipation."[558]

Rodney flattered Burr, whose conduct of the trial had been "an example
worthy of imitation." He cajoled the Senators, whose attitude he had
"observed with heartfelt pleasure and honest pride"; and he warned them
not to take as a precedent the case of Warren Hastings, "that destroyer
of the people of Asia, that devastator of the East,"--murderer of men,
violator of _zenanas_, destroyer of sacred treaties, but yet acquitted
by the British House of Lords.

Counsel for Chase had spoken with "the fascinating voice of eloquence
and the deluding tongue of ingenuity"; but Rodney would avoid
"everything like declamation" and speak "in the temperate language of
reason."[559] He was sure that "the weeping voice of history will be
heard to deplore the oppressive acts and criminal excesses [of Samuel
Chase].... In the dark catalogue of criminal enormities, perhaps few are
to be found of deeper dye" than those named in the articles of
impeachment. "The independence of the Judiciary, the political tocsin of
the day, and _the alarm bell of the night_, has been rung through every
change in our ears.... The poor hobby has been literally rode to death."
Rodney was for a "rational independence of the Judiciary," but not for
the "inviolability of judges more than of Kings.[560] In this country I
am afraid the doctrine has been carried to such an extravagant length,
that the Judiciary may be considered like a spoiled child."

An independent Judiciary, indeed! "We all know that an associate justice
may sigh for promotion, and may be created a Chief Justice,[561]
while ... more than one Chief Justice has been appointed a Minister
Plenipotentiary."[562] With what result? Had judges stood aloof from
politics--or had they "united in the _Io triumphe_ which the votaries
and idolators of power have sung to those who were seated in the car of
Government? Have they made no offerings at the shrine of party; have
they not preached political sermons from the bench, in which they have
joined chorus with the anonymous scribblers of the day and the infuriate
instruments of faction?"[563]

In this fashion Rodney began a song of praise of Jefferson, for the
beneficence of whose Administration "the lamentable annals of mankind
afford no example." After passing through many "citadels" and "Scean
gates," and other forms of rhetorical architecture, he finally
discovered Chase "seated in a curricle of passion" which the Justice had
"driven on, Phæton-like, ... with destruction, persecution, and
oppression" following.

At last the orator attempted to discuss the law of the impeachment,
taking the double ground that an officer could be removed for any act
that two thirds of the Senate believed to be not "good behavior," and
that the Chase impeachment was "a criminal prosecution." For parts of
two days[564] Rodney examined every phase of the charges in a
distracting mixture of high-flown language, scattered learning,
extravagant metaphor, and jumbled logic.[565] His speech was a wretched
performance, so cluttered with tawdry rhetoric and disjointed argument
that it would have been poor even as a stump speech.

In an address that enraged the New England Federalists, Randolph closed
for the House managers.[566] He was late in arriving at the Senate
Chamber. He had been so ill the day before that Nicholson, because of
Randolph's "habitual indisposition," had asked the Senate to meet two
hours later than the usual time.[567] Sick as he was, without his notes
(which he had lost), Randolph nevertheless made the best argument for
the prosecution. Wasting no time, he took up the theory of impeachment
upon which, he said, "the wildest opinions have been advanced"--for
instance, "that an offense, to be impeachable, must be indictable." Why,
then, had the article on impeachment been placed in the Constitution at
all? Why "not have said, at once, that any ... officer ... convicted on
indictment should (_ipso facto_) be removed from office? This would be
coming at the thing by a short and obvious way."[568]

Suppose a President should veto every act of Congress
"indiscriminately"; it was his Constitutional right to do so; he could
not be indicted, but would anybody say he could not be impeached? Or if,
at a short session, the President should keep back until the last moment
all bills passed within the previous ten days, as the Constitution
authorized him to do, so that it would be a physical impossibility for
the two Houses to pass the rejected measures over the President's veto,
he could not be indicted for this abuse of power; but surely "he could
be impeached, removed and disqualified."[569]

Randolph's Virginia soul was deeply stirred by what he considered
Chase's alternate effrontery and cowardice. Is such a character "fit to
preside in a court of justice?... Today, haughty, violent, imperious;
tomorrow, humble, penitent and submissive.... Is this a character to
dispense law and justice to this nation? No, Sir!" Randolph then drew an
admirable picture of the ideal judge: "firm, indeed, but temperate, mild
though unyielding, neither a blustering bravo, nor a timid
poltroon."[570]

As far as he could go without naming him, Randolph described John
Marshall. Not without result had the politically experienced Chief
Justice conciliated the House managers in the manner that had so
exasperated the Federalist Senators. He would not thereafter be
impeached if John Randolph could prevent.

With keen pleasure at the annoyance he knew his words would give to
Jefferson,[571] Randolph continued to praise Marshall. The rejection of
Colonel Taylor's testimony at the Callender trial was contrary to "the
universal practice of our courts." On this point "what said the Chief
Justice of the United States," on whose evidence Randolph said he
specially relied? "He never knew such a case [to] occur before. He never
heard a similar objection advanced by any court, until that instance.
And this is the cautious and guarded language of a man placed in the
delicate situation of being compelled to give testimony against a
brother judge."

With an air of triumph Randolph asked: "Can anyone doubt Mr. Marshall's
thorough acquaintance with our laws? Can it be pretended that any man is
better versed in their theory and practice? And yet in all his extensive
reading, his long and extensive practice, in the many trials of which he
has been spectator, and the yet greater number at which he has assisted,
he had never witnessed such a case." Chase alone had discovered "this
fatal novelty, this new and horrible doctrine that threatens at one blow
all that is valuable in our criminal jurisprudence."

Had Martin shown that Chase was right in requiring questions to be
reduced to writing? "Here again," declared Randolph, "I bottom myself
upon the testimony of the same great man, yet more illustrious for his
abilities than for the high station that he fills, eminent as it is."
And he recited the substance of Marshall's testimony on this point.
Consider his description of the bearing of Chase toward counsel! "I
again ask you, what said the Chief Justice?... And what did he
_look_?[572] He felt all the delicacy of his situation, and, as he could
not approve, he declined giving any opinion on the demeanor of his
associate."[573] In such manner Randolph extolled Marshall.

Again he apostrophized the Chief Justice. If Fries and Callender "had
had fair trials, our lips would have been closed in eternal silence.
Look at the case of Logwood: The able and excellent judge whose worth
was never fully known until he was raised to the bench ... uttered not
one syllable that could prejudice the defense of the prisoner." Once
more he contrasted the judicial manners and rulings of Marshall with
those of Chase: "The Chief Justice knew that, sooner or later, the law
was an over-match for the dishonest, and ... he disdained to descend
from his great elevation to the low level of a public prosecutor."

The sick man spoke for two hours and a half, his face often distorted
and his body writhing with pain. Finally his tense nerves gave way. Only
public duty had kept him to his task, he said. "In a little time and I
will dismiss you to the suggestions of your own consciences. My weakness
and want of ability prevent me from urging my cause as I could wish,
but"--here the overwrought and exhausted man broke into tears--"it is
the last day of my sufferings and of yours."

Mastering his indisposition, however, Randolph closed in a passage of
genuine power: "We adjure you, on behalf of the House of Representatives
and of all the people of the United States, to exorcise from our Courts
the baleful spirit of party, to give an awful memento to our judges. In
the name of the nation, I demand at your hands the award of justice and
of law."[574]

So ended this unequal forensic contest in one of the most fateful trials
in American history. The whole country eagerly awaited tidings of the
judgment to be rendered by the Senatorial tribunal. The fate of the
Supreme Court, the character of the National Judiciary, the career of
John Marshall, depended upon it. Even union or disunion was involved;
for if Chase should be convicted, another and perhaps final impulse
would be given to the secessionist movement in New England, which had
been growing since the Republican attack on the National Judiciary in
1802.[575]

When the Senate convened at half-past twelve on March 1, 1805, a dense
mass of auditors filled every inch of space in the Senate Chamber.[576]
Down the narrow passageway men were seen bearing a couch on which lay
Senator Uriah Tracy of Connecticut, pale and sunken from sickness.
Feebly he rose and took one of the red-covered seats of the Senatorial
judges.[577]

"The Sergeants-at-Arms will face the spectators and seize and commit to
prison the first person who makes the smallest noise or disturbance,"
sternly ordered Aaron Burr.

"The secretary will read the first article of impeachment," he directed.

"Senator Adams of Massachusetts! How say you? Is Samuel Chase, the
respondent, guilty of high crimes and misdemeanors as charged in the
article just read?"

"Not guilty!" responded John Quincy Adams.

When the name of Stephen R. Bradley, Republican Senator from Vermont,
was reached, he rose in his place and voted against conviction. The
auditors were breathless, the Chamber filled with the atmosphere of
suspense. It was the first open break in the Republican ranks. Two more
such votes and the carefully planned battle would be lost to Jefferson
and his party.

"Not guilty!" answered John Gaillard, Republican Senator from South
Carolina.

Another Republican defection and all would be over. It came from the
very next Senator whose name Aaron Burr pronounced, and from one whose
answer will forever remain an enigma.

"Senator Giles of Virginia! How say you? Is Samuel Chase guilty of the
high crimes and misdemeanors as charged in the articles just read?"

"Not guilty!"

Only sixteen Senators voted to impeach on the first article, nine
Republicans aligning themselves with the nine Federalists.

The vote on the other articles showed varying results; on the fourth,
fourteen Senators responded "Guilty!"; on the fifth, the Senate was
unanimous for Chase.

Upon the eighth article--Chase's political charge to the Baltimore grand
jury--the desperate Republicans tried to recover, Giles now leading
them. Indeed, it may be for this that he cast his first vote with his
party brethren from the North--he may have thought thus to influence
them on the one really strong charge against the accused Justice. If so,
his stratagem was futile. The five Northern Republicans (Bradley and
Smith of Vermont, Mitchell and Smith of New York, and John Smith of
Ohio) stood firm for acquittal as did the obstinate John Gaillard of
South Carolina.[578]

The punctilious Burr ordered the names of Senators and their recorded
answers to be read for verification.[579] He then announced the result:
"It appears that there is not a constitutional majority of votes finding
Samuel Chase, Esq. guilty of any one article. It therefore becomes my
duty to declare that Samuel Chase, Esq. stands acquitted of all the
articles exhibited by the House of Representatives against him."[580]

The fight was over. There were thirty-four Senators, nine of them
Federalists, twenty-five Republicans. Twenty-two votes were necessary
to convict. At their strongest the Republicans had been able to muster
less than four fifths of their entire strength. Six of their number--the
New York and Vermont Senators, together with John Gaillard of South
Carolina and John Smith of Ohio--had answered "not guilty" on every
article.

For the first time since his appointment, John Marshall was secure as
the head of the Supreme Bench.[581] For the first time since Jefferson's
election, the National Judiciary was, for a period, rendered
independent. For the first time in five years, the Federalist members of
the Nation's highest tribunal could go about their duties without fear
that upon them would fall the avenging blade of impeachment which had
for half a decade hung over them. One of the few really great crises in
American history had passed.[582]

"The greatest and most important trial ever held in this nation has
terminated justly," wrote Senator Plumer to his son. "The venerable
judge whose head bears the frost of seventy winters,[583] is honorably
acquitted. I never witnessed, in any place, such a display of learning
as the counsel for the accused exhibited."[584]

Chagrin, anger, humiliation, raged in Randolph's heart. His long legs
could not stride as fast as his frenzy, when, rushing from the scene of
defeat, he flew to the floor of the House. There he offered an amendment
to the Constitution providing that the President might remove National
judges on the joint address of both Houses of Congress.[585] "Tempest in
the House," records Cutler.[586]

Nicholson was almost as frantic with wrath, and quickly followed with a
proposal so to amend the Constitution that State Legislatures might, at
will, recall Senators.[587]

Republicans now began to complain to their party foes of one another.
Over a "rubber of whist" with John Quincy Adams, Senator Jackson of
Georgia, even before the trial, had spoken "slightingly both of Mr. John
Randolph and of Mr. Nicholson";[588] and this criticism of Republicans
_inter se_ now increased.

Jefferson's feelings were balanced between grief and glee; his mourning
over the untoward result of his cherished programme of judicial reform
was ameliorated by his pleasure at the overthrow of the unruly
Randolph,[589] who had presumed to dissent from the President's Georgia
land policy.[590] The great politician's cup of disappointment, which
the acquittal of Chase had filled, was also sweetened by the knowledge
that Republican restlessness in the Northern States would be quieted;
the Federalists who were ready, on other grounds, to come to his
standard would be encouraged to do so; and the New England secession
propaganda would be deprived of a strong argument. He confided to the
gossipy William Plumer, the Federalist New Hampshire Senator, that
"impeachment is a farce which will not be tried again."[591]

The Chief Justice of the United States, his peril over, was silent and
again serene, his wonted composure returned, his courage restored. He
calmly awaited the hour when the wisdom of events should call upon him
to render another and immortal service to the American Nation. That hour
was not to be long delayed.


FOOTNOTES:

[430] Giles was appointed Senator August 11, 1804, by the Governor to
fill the unexpired term of Abraham Venable who resigned in order that
Giles might be sent to the Senate. In December the Legislature elected
him for the full term. Upon taking his seat Giles immediately became the
Republican leader of the Senate. (See Anderson, 93.)

[431] Dec. 21, 1804, _Memoirs, J. Q. A._: Adams, I, 322-23.

[432] Dec. 21, 1804. _Memoirs, J. Q. A._: Adams, I, 322-23.

[433] Plumer, 274-75; and see especially Plumer, Jan. 5, 1804,
"Congress," Plumer MSS. Lib. Cong.

[434] The powerful Republican organ, the _Aurora_, of Philadelphia, thus
indicted the National Judiciary: Because judges could not be removed,
"many wrongs are daily done by the courts to humble, obscure, or poor
suitors.... It is a prodigeous monster in a free government to see a
class of men set apart, not simply to administer the laws, but who
exercise a legislative and even an executive power, directly in defiance
and contempt of the Constitution." (_Aurora_, Jan. 28, 1805, as quoted
in Corwin, 41.) Professor Corwin says that this utterance was approved
by Jefferson.

[435] "Mr. Giles from Virginia ... is the Ministerial leader in the
Senate." (Plumer to Thompson, Dec. 23, 1804, Plumer MSS. Lib. Cong.)

"I considered M^{r.} Giles as the ablest _practical_ politician of the
whole party enlisted under M^{r.} Jefferson's banners." (Pickering to
Marshall, Jan. 24, 1826, Pickering MSS. Mass. Hist. Soc.)

[436] William Johnson of South Carolina, appointed March 26, 1804, vice
William Moore, resigned. Johnson was a stanch Jeffersonian when
appointed. He was thirty-three years old at the time he was made
Associate Justice.

[437] It is impossible to put too much emphasis on Giles's avowal. His
statement is the key to the Chase impeachment.

[438] Adams to his father, March 8, 1805, _Writings, J. Q. A._: Ford,
III, 108.

[439] Pickering to Lyman, Feb. 11, 1804, _N.E. Federalism_: Adams, 344;
Lodge: _Cabot_, 444; also see Plumer, 275.

[440] Plumer to Mason, Jan. 14, 1803, Plumer MSS. Lib. Cong.

[441] Bayard to Bassett, Feb. 12, 1802, _Bayard Papers_: Donnan, 148.

[442] Channing: _Jeffersonian System_, 119-20; Adams: _U.S._ II, 225-27,
235; Anderson, 93, 95.

[443] Smith to Plumer, Feb. 11, 1804, Plumer MSS. Lib. Cong.

[444] See _infra_, 176-77, 196.

[445] 2 Cranch, 358-405.

[446] See vol. II, 481-82, of this work.

[447] See vol. II, 71-74, of this work.

[448] Fifteen years passed before a critical occasion called for another
assertion by Marshall of the doctrine of implied powers; and that
occasion produced one of Marshall's greatest opinions--in the judgment
of many, the greatest of all his writings. (See McCulloch _vs._
Maryland, vol. IV, chap. VI, of this work.)

[449] Addison's address is historically important; it perfectly shows
the distrust of democracy which all Federalist leaders then felt. Among
other things, he pleaded for the independence of the Judiciary, asserted
that it was their exclusive province to decide upon the
constitutionality of laws, and stoutly maintained that no judge could be
impeached except for an offense for which he also could be indicted.
(_Addison Trial_, 101-43.)

[450] The petition praying for the impeachment of Addison was sent to
the Pennsylvania House of Representatives on January 11, 1802. On March
23, 1802, that body transmitted articles of impeachment to the State
Senate. The trial was held in early January, 1803. Addison was convicted
January 26, 1803. (_Ib._)

[451] Jefferson's Message was transmitted to the House, February 4,
1803, nine days after the conviction of Addison. It enclosed a "letter
and affidavits" setting forth Pickering's conduct on the bench in the
case of the ship Eliza, and suggested that "the Constitution has
confided [to the House] a power of instituting proceedings of redress."
(_Annals_, 7th Cong. 2d Sess. 460.)

On March 2 the committee reported a resolution for Pickering's
impeachment because of the commission by him of "high crimes and
misdemeanors," and, though a few Federalists tried to postpone a vote,
the resolution was adopted immediately.

[452] Depositions of Samuel Tenney, Ammi R. Cutter, Joshua Brackett,
Edward St. Loe Livermore. (_Annals_, 8th Cong. 1st Sess. 334-42.)

[453] Testimony of John S. Sherburne, Thomas Chadbourne, and Jonathan
Steele. (_Ib._ 351-56.)

[454] The wise and comprehensive Federalist Judiciary Act of 1801
covered just such cases. It provided that when a National judge was
unable to discharge the duties of his office, the circuit judges should
name one of their members to fill his place. (See _Annals_, 6th Cong. 2d
Sess. 1545.) This very thing had been done in the case of Judge
Pickering (see McMaster: _U.S._ III, 166). It is curious that, in the
debate, the Republicans did not denounce this as unconstitutional.

[455] Plumer, Jan. 5, 1804, "Congress," Plumer MSS. Lib. Cong.

[456] _Annals_, 8th Cong. 1st Sess. 328-30.

[457] _Memoirs, J. Q. A._: Adams, I, 299-300.

[458] "This," records Adams, "had evidently been settled ... out of
court. And this is the way in which these men administer justice."
(_Ib._)

[459] "In the House ... speeches are making every day to dictate to the
Senate how they are to proceed; and the next morning they proceed
accordingly." (_Ib._ 301-02.)

[460] Feb. 18, 1803, Plumer, 253.

[461] _Annals_, 8th Cong. 1st Sess. 365.

[462] See _Memoirs, J. Q. A._; Adams, I, 302-04, for a vivid account of
the whole incident.

[463] Plumer, March 10, 1804, "Congress," Plumer MSS. Lib. Cong.

[464] _Annals_, 8th Cong. 1st Sess. 367. "The independence of our
judiciary is no more ... I hope the time is not far distant when the
people east of the North river _will manage their own affairs in their
own way_; ... and that the _sound_ part will separate from the
_corrupt_." (Plumer to Morse, March 10, 1804, Plumer MSS. Lib. Cong.) On
the unconstitutional and revolutionary conduct of the Republicans in the
Pickering impeachment trial see Adams: _U.S._ II, 158.

[465] Senators John Armstrong of New York, Stephen R. Bradley of
Vermont, and David Stone of North Carolina. Jonathan Dayton of New
Jersey and Samuel White of Delaware, Federalists, also withdrew.
(_Annals_, 8th Cong. 1st Sess. 366.) And see _Memoirs, J. Q. A._: Adams,
I, 308-09; J. Q. Adams to his father, March 8, 1805, _Writings, J. Q.
A._: Ford, III, 110; Plumer to Park, March 13, 1804, Plumer MSS. Lib.
Cong.

Senator John Brown of Kentucky, a Republican, "could not be induced to
join the majority, but, unwilling to offend them, he obtained & has
taken a leave of absence." (Plumer to Morse, March 10, 1804, Plumer MSS.
Lib. Cong.) Senator Brown had been elected President _pro tem._ of the
Senate, January 23, 1804.

Burr "abruptly left the Senate" to attend to his candidacy for the
governorship of New York. (Plumer, March 10, 1804, "Congress," Plumer
MSS. Lib. Cong.) Senator Franklin of North Carolina was then chosen
President _pro tem._ and presided during the trial of Pickering. But
Burr returned in time to arrange for, and preside over, the trial of
Justice Chase.

[466] The Republicans even refused to allow the report of the
proceedings to be "printed in the Appendix to the Journals of the
Session." (_Memoirs, J. Q. A._: Adams, I, 311.)

The conviction and removal of Pickering alarmed the older Federalists
almost as much as did the repeal of the Judiciary Act. "The _demon_ of
party governed the decision. All who condemned were Jeffersonians, and
all who pronounced the accused not guilty were Federalists." (Pickering
to Lyman, March 4, 1804, _N.E. Federalism_: Adams, 358-59; Lodge:
_Cabot_, 450.)

"I really wish those in New England who are boasting of the independence
of our Judiciary would reflect on what a slender tenure Judges hold
their offices whose political sentiments are at variance with the
dominant party." (Plumer to Park, March 13, 1804, Plumer MSS. Lib.
Cong.)

[467] Exhibit VIII, _Chase Trial_, Appendix, 61-62; also see _Annals_,
8th Cong. 2d Sess. 675-76.

[468] June 13, 1803.

[469] See _Chase Trial_, 101 _et seq._

[470] See McMaster: _U.S._ III, 162-70.

[471] Jefferson to Nicholson, May 13, 1803, _Jefferson Writings_:
Washington, IV, 484.

[472] Macon to Nicholson, Aug. 6, 1803, Dodd: _Life of Nathaniel Macon_,
187-88. Macon seriously doubted the expediency and legality of the
impeachment of Chase. However, he voted with his party.

[473] Dodd, 187-88.

[474] Adams to Rush, June 22, 1806, _Old Family Letters_, 100.

[475] Chase "is very obnoxious to the _powers that be_ & must be
_denounced_, but articles will not be exhibited agt him this session.
The Accusers have collected a volume of exparte evidence against him,
printed & published it in pamphlets, & now it is publishing in the Court
gazette to be diffused in every direction.... If a party to a suit at
law, ... was to practice in this manner he would merit punishment."
(Plumer to Smith, March 11, 1804, Plumer MSS. Lib. Cong.)

[476] See _supra_, chap. I. For the articles of impeachment see
_Annals_, 8th Cong. 2d Sess. 85-88; _Chase Trial_, 10-11.

The Republicans, for a time, contemplated the impeachment of Richard
Peters, Judge of the United States Court for the District of
Pennsylvania, who sat with Chase during the trial of Fries. (_Annals_,
8th Cong. 1st Sess. 823-24, 850, 873-74.) But his name was dropped
because he had not "so acted in his judiciary capacity as to require the
interposition of the Constitutional powers of this House." (_Ib._ 1171.)

Peters was terrified and turned upon his fellow judge. He showered
Pickering and other friends with letters, complaining of the conduct of
his judicial associate. "If I am to be immolated let it be with some
other Victim--or for my own Sins." (Peters to Pickering, Jan. 26, 1804,
Pickering MSS. Mass. Hist. Soc.)

[477] J. Q. Adams to his father, March 14, 1805, _Writings, J. Q. A._:
Ford, III, 116.

[478] Dec. 20, 1804, _Memoirs, J. Q. A._: Adams, I, 321.

[479] Plumer to Cogswell, Jan. 4, 1805, Plumer MSS. Lib. Cong.; and see
Plumer to Sheafe, Jan. 9, 1805, Plumer MSS. _loc. cit._

[480] Bayard to Harper, Jan. 30, 1804, _Bayard Papers_: Donnan, 160.

[481] Pickering to Lyman, March 14, 1804, Lodge: _Cabot_, 450; also
_N.E. Federalism_: Adams, 359.

[482] Ames to Dwight, Jan. 20, 1805, Ames, I, 338.

[483] The Yazoo fraud. No other financial scandal in our history equaled
this, if one considers the comparative wealth and population of the
country at the times other various great frauds were perpetrated. For an
account of it, see _infra_, chap. X.

[484] For Randolph's frantic speech on the Yazoo fraud and Marshall's
opinion in Fletcher _vs_. Peck, see _infra_, chap. X.

[485] This form was adopted in the trial of Judge Pickering. See
_Annals_, 8th Cong. 1st Sess. 319.

[486] See Plumer, 323.

[487] Channing: _U.S._ IV, 287.

[488] Marshall to James M. Marshall, April 1, 1804, MS.

[489] William Marshall. See _infra_, 191-92.

[490] John Wickham, leader of the Richmond bar and one of Marshall's
intimate friends.

[491] See _supra_, chap. I; and _infra_.

[492] See 1 Kings, XII, 10.

[493] Marshall to Chase, Jan. 23, 1804, Etting MSS. Pa. Hist. Soc.

[494] See _infra_, 192-96.

[495] See _supra_, chap. III, 113.

[496] "M^r Burr had the sole power of making the arrangements ... for
the trial." (Plumer to Sheafe, Jan. 9, 1805, Plumer MSS. Lib. Cong.)

[497] _Annals_, 8th Cong. 2d Sess. 100; _Chase Trial_, 2-5.

[498] Plumer to Norris, Nov. 7, 1804, Plumer, 329.

[499] See _infra_, chap. VI.

[500] See J. Q. Adams to his father, Jan. 5, 1805, _Writings, J. Q. A._:
Ford, III, 104.

[501] Plumer, 274. "John S. Sherburne, Jonathan Steele, Michael McCleary
and Richard Cutts Shannon were the principal witnesses against
Pickering. Sherburne was appointed Judge [in Pickering's place]; Steele,
District Attorney; McCleary, Marshal; and Shannon, Clerk of the
Court.... Steele, expecting to have been Judge refused to accept his
appointment, assigning as the reason his agency in the removal of
Pickering."

[502] Plumer, 329-30; and see Adams: _U.S._ II, 220.

[503] Nov. 26, 1804, _Memoirs, J. Q. A._: Adams, I, 317-18; and Adams,
_U.S._ II, 220-22.

"Burr is flattered and feared by the administration." (Plumer to
Thompson, Dec. 23, 1804, Plumer MSS. Lib. Cong.; and Plumer to Wilson,
Dec. 7, 1804, Plumer MSS. _loc. cit._)

[504] Davis, II, 360; also Adams: _U.S._ 218-44.

"It must be acknowledged that Burr has displayed much ability, and since
the first day I have seen nothing of partiality." (Cutler to Torrey,
March 1, 1805, Cutler: _Life, Journals and Correspondence of Manasseh
Cutler_, II, 193.)

At the beginning of the trial, however, Burr's rigor irritated the
Senate: "Mr. Burr is remarkably testy--he acts more of the tyrant--is
impatient, passionate--scolds--he is in a rage because we do not sit
longer." (Plumer, Feb. 8, 1805, "Diary," Plumer MSS. Lib. Cong.)

"Just as the time for adjourning to morrow was to be put ... Mr. Burr
said he wished to inform the Senate of some irregularities that he had
observed in the Court.

"Some of the Senators as he said during the trial & while a witness was
under examination walked between him & the Managers--others eat
apples--& some eat cake in their seats.

"Mr. Pickering said he eat an apple--but it was at a time when the
President had retired from the chair. Burr replied he did not mean
him--he did not see him.

"Mr. Wright said he eat cake--he had a just right to do so--he was
faint--but he disturbed nobody--He never would submit to be schooled &
catechised in this manner.

"At this instance a motion was made by Bradley, who also had eaten cake,
for an adjournment. Burr told Wright he was not in order--sit down. The
Senate adjourned--& I left Burr and Wright scolding.

"Really, _Master Burr_, you need a ferule, or birch to enforce your
lectures on polite behavior!" (_Ib._ Feb. 12, 1805; also _ib._ Jan. 2,
1805.) Burr was sharply criticized by the _Washington Federalist_,
January 8, for his rude conduct at the beginning of the trial.

[505] Plumer to Sheafe, Jan. 1805, Plumer, 330-31.

[506] _Annals_, 8th Cong. 2d Sess. 92; _Chase Trial_, 4.

[507] Dwight: _Signers of the Declaration of Independence_, 245-52.

[508] Hudson: _Journalism in the United States, 1690-1872_, 214; and see
Story to Bramble, June 10, 1807, Story, I, 154.

[509] "In person, in manners, in unwieldy strength, in severity of
reproof, in real tenderness of heart; and above all in intellect," he
was "the living, I had almost said the exact, image of Samuel Johnson."
(Story to Fay, Feb. 25, 1808, Story, I, 168.)

Chase's career had been stirring and important. Carefully educated by
his father, an Episcopal clergyman, and thoroughly grounded in the law,
he became eminent at the Maryland bar at a very early age. From the
first his aggressive character asserted itself. He was rudely
independent and, as a member of the Maryland House of Burgesses, treated
the royal governor and his Tory partisans with contemptuous defiance.
When the British attempted to enforce the Stamp Act, he joined a band of
high-spirited young patriots who called themselves "The Sons of
Liberty," and led them in their raids upon public offices, which they
broke open, seizing and destroying the stamps and burning in effigy the
stamp distributor.

His violent and fearless opposition to British rule and officials made
young Chase so popular that he was elected as one of the five Maryland
delegates to the first Continental Congress that assembled during the
winter of 1774. He was reëlected the following year, and was foremost in
urging the measures of armed defense that ended in the appointment of
Washington as Commander-in-Chief of the American forces. Disregarding
the instructions of his State, Chase hotly championed the adoption of
the Declaration of Independence, and was one of the signers of that
document.

On the floor of Congress he denounced a member as a traitor--one Zubly,
a Georgia parson--who in terror fled the country. Chase continued in the
Continental Congress until 1778 and was appointed a member of almost
every important committee of that body. He became the leader of his
profession in Maryland, was appointed Chief Justice of the Criminal
Court of Baltimore, and elected a member of the Maryland Convention,
called to ratify the National Constitution. Thereafter, he was made
Chief Justice of the Supreme Court of the State. In 1796, President
Washington appointed Chase as Associate Justice of the National Supreme
Court of which he was conceded to be one of the ablest members. (Dwight,
245-52.)

[510] See Plumer to his brother, Feb. 25, 1805, Plumer MSS. Lib. Cong.

[511] _Maryland Historical Society Fund-Publication No. 24_, p. 20. Burr
told Key that "he must not appear as counsel with his loose coat on."
(Plumer, Feb. 11, 1805, "Diary," Plumer MSS. Lib. Cong.)

[512] Adams: _U.S._ II, 227-28. Bayard strongly urged Chase to have no
counsel, but to defend himself. (Bayard to Harper, Jan. 30, 1804,
_Bayard Papers_: Donnan, 159-60.)

[513] See Story's description of Martin three years later, Story to Fay,
Feb. 16, 1808, Story, I, 163-64.

Luther Martin well illustrates the fleeting nature of the fame of even
the greatest lawyers. For two generations he was "an acknowledged leader
of the American bar," and his preëminence in that noble profession was
brightened by fine public service. Yet within a few years after his
death, he was totally forgotten, and to-day few except historical
students know that such a man ever lived.

Martin began his practice of the law when twenty-three years of age and
his success was immediate and tremendous. His legal learning was
prodigious--his memory phenomenal.

Apparently, Martin was the heaviest drinker of that period of heavy
drinking men. The inexplicable feature of his continuous excesses was
that his mighty drinking seldom appeared to affect his professional
efficiency. Only once in his long and active career did intoxication
interfere with his work in court. (See _infra_, 586.)

Passionate in his loves and hates, he abhorred Jefferson with all the
ardor of his violent nature; and his favorite denunciation of any bad
man was, "Sir! he is as great a scoundrel as Thomas Jefferson."

For thirty years Martin was the Attorney-General of Maryland. He was the
most powerful member of his State in the Convention that framed the
National Constitution which he refused to sign, opposing the
ratification of it in arguments of such signal ability that forty years
afterward John C. Calhoun quarried from them the material for his famous
Nullification speeches.

When, however, the Constitution was ratified and became the supreme law
of the land, Martin, with characteristic wholeheartedness, supported it
loyally and championed the Administrations of Washington and Adams.

He was the lifelong friend of the impeached justice, to whom he owed his
first appointment as Attorney-General of Maryland as well as great
assistance and encouragement in the beginning of his career. Chase and
he were also boon companions, each filled with admiration for the
talents and attainments of the other, and strikingly similar in their
courage and fidelity to friends and principles. So the lawyer threw
himself into the fight for the persecuted judge with all his astonishing
strength.

When, in his old age, he was stricken with paralysis, the Maryland
Legislature placed a tax of five dollars annually on all lawyers for his
support. After Martin's death the bench and bar of Baltimore passed a
resolution that "we will wear mourning for the space of thirty days."
(_American Law Review_, I, 279.)

No biography of Martin has ever been written; but there are two
excellent sketches of his life, one by Ashley M. Gould in _Great
American Lawyers_: Lewis, II, 3-46; and the other by Henry P. Goddard in
the _Md. Hist. Soc. Fund. Pub. No. 24._

[514] _Annals_, 8th Cong. 2d Sess. 160-61. The case to which Randolph
refers was that of the United States _vs._ Thomas Logwood, indicted in
April, 1801, for counterfeiting. Logwood was tried in the United States
Circuit Court at Richmond during June, 1804. Marshall, sitting with
District Judge Cyrus Griffin, presided. Notwithstanding Marshall's
liberality, Logwood was convicted and Marshall sentenced him to ten
years' imprisonment at hard labor. (Order Book No. 4, 464, Records, U.S.
Circuit Court, Richmond.)

[515] _Annals_, 8th Cong. 2d Sess. 163-65; _Chase Trial_, 18. Randolph
disgusted the Federalists. "This speech is the most feeble--the most
incorrect that I ever heard him make." (Plumer, Feb. 9, 1805, "Diary,"
Plumer MSS. Lib. Cong.)

[516] Two witnesses to the Baltimore incident, George Reed and John
Montgomery, committed their testimony to memory as much "as ever a
Presbyterian clergyman did his sermon--or an Episcopalian his prayer."
(Plumer, Feb. 14, 1805, "Diary," Plumer MSS. Lib. Cong.)

[517] See _supra_, chap. I.

[518] _Annals_, 8th Cong. 2d Sess. 203-05; _Chase Trial_, 36-37.

[519] Plumer, Feb. 11, 1805, "Diary," Plumer MSS. Lib. Cong.

[520] _Annals_, 8th Cong. 2d Sess. 200; _Chase Trial_, 35.

[521] See _supra_, chap. I.

[522] _Annals_, 8th Cong. 2d Sess. 207. John Quincy Adams's description
of all of the evidence is important and entertaining:

"Not only the casual expressions dropped in private conversations among
friends and intimates, as well as strangers and adversaries, in the
recess of a bed-chamber as well as at public taverns and in stage
coaches, had been carefully and malignantly laid up and preserved for
testimony on this prosecution; not only more witnesses examined to
points of _opinion_, and called upon for discrimination to such a degree
as to say whether the deportment of the Judge was _imperative_ or
_imperious_, but hours of interrogation and answer were consumed in
evidence to _looks_, to _bows_, to tones of voice and modes of
speech--to prove the insufferable grievance that Mr. Chase had more than
once raised a laugh at the expense of Callender's counsel, and to
ascertain the tremendous fact that he had accosted the ATTORNEY GENERAL
_of Virginia_ by the appellation of _Young Gentleman_!!

"If by thumbscrews, the memory of a witness trace back for a period of
five years the features of the Judge's face, it could be darkened with a
frown, it was to be construed into rude and contumelious treatment of
the Virginia bar; if it was found lightened with a smile, 'tyrants in
all ages had been notorious for their pleasantry.'

"In short, sir, Gravity himself could not keep his countenance at the
nauseating littlenesses which were resorted to for proof of atrocious
criminality, and indignation melted into ridicule at the puerile
perseverance with which _nothings_ were accumulated, with the hope of
making _something_ by their multitude.

"All this, however, was received because Judge Chase would not suffer
his counsel to object against it. He indulged his accusers with the
utmost licence of investigation which they ever derived [_sic_], and
contented himself with observing to the court that he expected to be
judged upon the _legal_ evidence in the case." (J. Q. Adams to his
father, March 8, 1805, _Writings, J. Q. A._: Ford, III, 112-13.)

[523] This was the fourth member of the Marshall family upon whom
offices were bestowed while Marshall was Secretary of State. (See vol.
II, 560, of this work.)

[524] _Annals_, 8th Cong. 2d Sess. 251-62; _Chase Trial_, 65-69. "I was
unable to give credence to his [Heath's] testimony." (Plumer, Feb. 12,
1805, "Diary," Plumer MSS. Lib. Cong.) Although Heath's story was
entirely false, it has, nevertheless, found a place in serious history.

Marshall's brother made an excellent impression on the Senate. "His
answers were both prompt & lucid--There was a frankness, a fairness & I
will add a firmness that did him much credit. His testimony was [on
certain points] ... a complete defense of the accused." (_Ib._ Feb. 15,
1805.)

[525] Harvie's son, Jacquelin B. Harvie, married Marshall's daughter
Mary. (Paxton: _Marshall Family_, 100.)

[526] _Annals_, 8th Cong. 2d Sess. 262-67; _Chase Trial_, 71.

[527] Plumer, Feb. 16, 1805, "Diary," Plumer MSS. Lib. Cong.

[528] Feb. 19, 1805, _Memoirs, J. Q. A._: Adams, I, 354.

Chase did not leave Washington, and was in court when some of the
arguments were made. (See Chase to Hopkinson, March 10, 1805; Hopkinson
MSS. in possession of Edward P. Hopkinson, Phila.)

[529] Feb. 13, 1805, _Memoirs, J. Q. A._: Adams, I, 351.

[530] _Ib._ The motion to admit the public was carried by one vote only.
(Plumer, Feb. 13, 1805, "Diary," Plumer MSS. Lib. Cong.)

[531] Feb. 13, 1805, _Memoirs, J. Q. A._: Adams, I, 353.

[532] Feb. 20, 1805, _ib._ 355.

[533] Cutler, II, 183; also _Annals_, 8th Cong. 2d Sess. 313-29; _Chase
Trial_, 101-07.

[534] Plumer, Feb. 20, 1805, "Diary," Plumer MSS. Lib. Cong.

[535] Cutler, II, 183.

[536] _Annals_, 8th Cong. 2d Sess. 329-53; _Chase Trial_, 107 _et seq._

[537] _Memoirs, J. Q. A._: Adams, I, 355-56.

[538] Plumer, Feb. 21, 1805, "Diary," Plumer MSS. Lib. Cong.

[539] Adams: _U.S._ II, 231. Even Randolph praised him. (_Annals_, 8th
Cong. 2d Sess. 640.)

[540] _Annals_, 8th Cong. 2d Sess. 354-94; _Chase Trial_, 116-49.

[541] Feb. 21, 1805, _Memoirs, J. Q. A._: Adams, I, 356.

"The effect on the auditory [was] prodigiously great." (Cutler, II,
184.)

"His argument ... was one of the most able ... I ever heard." (Plumer,
Feb. 21, 1805, "Diary," Plumer MSS. Lib. Cong.)

[542] Feb. 22, 1805, _Memoirs, J. Q. A._: Adams, I, 356.

[543] _Annals_, 8th Cong. 2d Sess. 394-413; see also _Chase Trial_,
149-62; and Cutler, II, 184.

[544] _Annals_, 8th Cong. 2d Sess. 413-29; _Chase Trial_, 162-72.

[545] _Annals_, 8th Cong. 2d Sess. 429-82; _Chase Trial_, 173 _et seq._

[546] _Annals_, 8th Cong. 2d Sess. 483.

[547] _Ib._ 484-87.

[548] See résumé of Franklin's indictment of the press in vol. I,
268-69, of this work.

[549] _Annals_, 8th Cong. 2d Sess. 488; _Chase Trial_, *223.

[550] "Mr. Martin really possesses much legal information & a great fund
of good humour, keen satire & poignant wit ... he certainly has
talents." (Plumer, Feb. 23, 1805, "Diary," Plumer MSS. Lib. Cong.)

[551] _Annals_, 8th Cong. 2d Sess. 489; _Chase Trial_, *224.

[552] _Annals_, 8th Cong. 2d Sess. 556; _Chase Trial_, *205-44.

[553] _Annals_, 8th Cong. 2d Sess. 560-62; _Chase Trial_, 237 _et seq._

[554] See Jefferson to Hay, _infra_, chap. VIII.

[555] See _infra_, chap. X.

[556] _Memoirs, J. Q. A._: Adams, I, 358.

[557] _Annals_, 8th Cong. 2d Sess. 582; _Chase Trial_, 237-43.

[558] _Annals_, 8th Cong. 2d Sess. 583.

This was an under-statement of the facts; for the first time the
celebration of Washington's birthday was abandoned in the National
Capital. (Plumer, 326.) Plumer says that this was done because the
celebration might hurt Chase, "for there are senators who for the
veriest trifles may be brought to vote against him." (Feb. 22, 1805,
"Congress," Plumer MSS. Lib. Cong.)

[559] _Annals_, 8th Cong. 2d Sess. 583-84; _Chase Trial_, 243-56.

[560] _Annals_, 8th Cong. 2d Sess. 585-87.

[561] Rodney here refers to the Republican allegation that Chase tried
to secure appointment as Chief Justice by flattering Adams through
charges to juries, rulings in court, and speeches on the stump.

[562] John Jay to England and Oliver Ellsworth to France. (See vol. II,
113, 502, of this work.)

[563] _Annals_, 8th Cong. 2d Sess. 587-89.

[564] _Memoirs, J. Q. A._: Adams, I, 359.

[565] _Annals_, 8th Cong. 2d Sess. 583-641; _Chase Trial_, 243-56.

[566] Cutler announced it as "an outrageous, infuriated declamation,
which might have done honor to Marat, or Robespierre." (Cutler, II,
184.)

[567] _Memoirs, J. Q. A._: Adams, I, 359.

[568] _Annals_, 8th Cong. 2d Sess. 642; _Chase Trial_, 256.

[569] _Annals_, 8th Cong. 2d Sess. 644; _Chase Trial_, 257.

[570] _Annals_, 8th Cong. 2d Sess. 644-45; _Chase Trial_, 258.

[571] See _infra_, chap. X.

[572] See _supra_, 196.

[573] _Annals_, 8th Cong. 2d Sess. 651-52; _Chase Trial_, 266.

[574] _Annals_, 8th Cong. 2d Sess. 641-62. John Quincy Adams notes in
his diary that Randolph spoke for more than two hours "with as little
relation to the subject matter as possible--without order, connection,
or argument; consisting altogether of the most hackneyed commonplaces of
popular declamation." Throughout, records Adams, there was "much
distortion of face and contortion of body, tears, groans and sobs."
(_Memoirs, J. Q. A._: Adams, I, 359.)

"His speech ... was devoid of argument, method or consistency--but was
replete with invective & even vulgarity.... I never heard him deliver
such a weak feeble & deranged harangue." (Plumer to his wife, Feb. 28,
1805, Plumer MSS. Lib. Cong.)

"After he sat down--he threw his feet upon the table--distorted his
features & assumed an appearance as disgusting as his harangue."
(Plumer, Feb. 27, 1805, "Diary," Plumer MSS. Lib. Cong.)

[575] See _supra_, chaps. II and III; _infra_, chap. VI, and vol. IV,
chap. I.

[576] "There was a vast concourse of people ... and great solemnity."
(Cutler to Torrey, March 1, 1805, Cutler, II, 193.) "The galleries were
crowded--many ladies. I never witnessed so general & so deep an
anxiety." (Plumer to his wife, March 1, 1805, Plumer MSS. Lib. Cong.)

[577] Plumer, 323.

[578] _Annals_, 8th Cong. 2d Sess. 665-69; _Memoirs, J. Q. A._: Adams,
I, 362-63.

[579] _Ib._ 363.

[580] _Annals_, 8th Cong. 2d Sess. 669. By this time Burr had changed to
admiration the disapproval with which the Federalist Senators had, at
first, regarded his conduct of the trial. "Mr. Burr has certainly, on
the whole, done himself, the Senate, and the Nation honor by the
dignified manner in which he has presided over this high and numerous
court," testifies Senator Plumer, notwithstanding his deep prejudice
against Burr. (Plumer, March 1, 1805, "Diary," Plumer MSS. Lib. Cong.)

[581] See Adams: _U.S._ II, 243.

[582] See Plumer, 324; _Memoirs, J. Q. A._: Adams, I, 371; Adams: _John
Randolph_, 131-32, 152; Channing: _Jeff. System_, 120; Adams: _U.S._ II,
243.

[583] Plumer here adds six years to Chase's age--an unusual inaccuracy
in the diary of that born newspaper reporter.

[584] Plumer to his son, March 3, 1805, Plumer, 325.

[585] _Annals_, 8th Cong. 2d Sess. 1213; and see _Annual Report, Am.
Hist. Assn. 1896_, II, 64; also Adams: _U.S._ II, 240.

[586] Cutler, II, 185.

[587] _Annals_, 8th Cong. 2d Sess. 1213; and see J. Q. Adams to his
father, March 14, 1805, _Writings, J. Q. A._: Ford, III, 117.

[588] Jan. 30, 1805, _Memoirs, J. Q. A._: Adams, I, 341.

[589] See Adams: _U.S._ II, 243.

[590] See _infra_, chap. X.

[591] Plumer, 325. Jefferson soon took Plumer into the Republican fold.




CHAPTER V

BIOGRAPHER

    Marshall has written libels on one side. (Jefferson.)

    What seemed to him to pass for dignity, will, by his reader, be
    pronounced dullness. (Edinburgh Review.)

    That work was hurried into the world with too much
    precipitation. It is one of the most desirable objects I have in
    this life to publish a corrected edition. (Marshall.)


Although the collapse of the Chase impeachment made it certain that
Marshall would not be removed from office, and he was thus relieved from
one source of sharp anxiety, two other causes of worry served to make
this period of his life harried and laborious. His heavy indebtedness to
Denny Fairfax[592] continuously troubled him; and, worse still for his
peace of mind, he was experiencing the agonies of the literary composer
temperamentally unfitted for the task, wholly unskilled in the art, and
dealing with a subject sure to arouse the resentment of Jefferson and
all his followers. Marshall was writing the "Life of Washington."

In a sense it is fortunate for us that he did so, since his long and
tiresome letters to his publishers afford us an intimate view of the
great Chief Justice and reveal him as very human. But the biography
itself was to prove the least satisfactory of all the labors of
Marshall's life.

Not long after the death of Washington, his nephew, Bushrod Washington,
had induced Marshall to become the biographer of "the Father of his
Country." Washington's public and private papers were in the possession
of his nephew. Although it was advertised that these priceless original
materials were to be used in this work exclusively, many of Washington's
writings had already been used by other authors.

Marshall needed little urging to undertake this monumental labor.
Totally unfamiliar with the exhausting toil required of the historian,
he deemed it no great matter to write the achievements of his idolized
leader. Moreover, he was in pressing need of money with which to pay the
remaining $31,500[593] which his brother and he still owed on the
Fairfax purchase, as well as the smaller but yet annoying sum due their
brother-in-law, Rawleigh Colston, for his share of the estate which the
Marshall brothers had bought of him.[594] To discharge these
obligations, Marshall had nothing but his salary and the income from his
lands, which were wholly insufficient to meet the demands upon him. Some
of his plantations, in fact, were "productive only of expense &
vexation."[595]

Marshall and Bushrod Washington made extravagant estimates of the
prospective sales of the biography and of the money they would receive.
Everybody, they thought, would be eager to buy the true story of the
life of America's "hero and sage." Perhaps the multitude could not
afford volumes so expensive as those Marshall was to write, but there
would be tens of thousands of prosperous Federalists who could be
depended upon to purchase at a generous price a definitive biography of
George Washington.[596]

Nor was the color taken from these rosy expectations by the enthusiasm
of those who wished to publish the biography. When it became known that
the book was to be produced, many printers applied to Bushrod Washington
"to purchase the copyright,"[597] among them C. P. Wayne, a successful
publisher of Philadelphia, who made two propositions to bring out the
work. After a consultation with Marshall, Bushrod Washington wrote
Wayne: "Being ignorant of such matters ... we shall therefore decline
any negotiation upon the subject for the present."[598]

After nearly two years of negotiation, Marshall and his associate
decided that the biography would require four or five volumes, and
arrived at the modest opinion that there would be "30,000 subscribers in
America.... Less than a dollar a volume cannot be thought of," and this
price should yield to the author and his partner "$150,000, supposing
there to be five volumes. This ... would content us, whilst it would
leave a very large profit" to the publisher. But, since the number of
subscribers could not be foretold with exactness, Marshall and Bushrod
Washington decided to "consent to receive $100,000 for the copyright in
the United States"; and they sternly announced that, "less than this sum
we will not take."[599]

Wayne sought to reduce the optimism of Marshall and Washington by
informing them that "the greatest number of subscribers ever obtained
for any one publication in this country was ... 2000 and the highest sum
ever paid in for the copyright of any one work ... was 30,000 Dollars."
Wayne thinks that Marshall's work may sell better, but is sure that more
than ten thousand sets cannot be disposed of for many years. He gives
warning that, if the biography should contain anything objectionable to
the British Government, the sale of it would be prevented in England, as
was the case with David Ramsay's "History of the Revolution."[600]

Marshall and Washington also "rec^d propositions for the purchase of the
right to sell in G^{t.} Britain," and so informed Wayne, calling upon
him to "say so" if he wished to acquire British, as well as American
rights, "knowing the grounds upon which we calculate the value in the
United States."[601]

So we find Marshall counting on fifty thousand dollars[602] at the very
least from his adventure in the field of letters. His financial
reckoning was expansive; but his idea of the time within which he could
write so important a history was grotesque. At first he counted on
producing "4 or 5 volumes in octavos of from 4 to 500 pages each" in
less than one year, provided "the present order of the Courts be not
disturbed or very materially changed."[603]

It thus appears that Marshall expected the Federalist Judiciary Act of
1801 to stand; that he would not be called upon to ride the long,
tiresome, time-consuming Southern circuit; and that, with no great
number of cases to be disposed of by the Supreme Court, he would have
plenty of leisure to write several large volumes of history in a single
year.

But the Republican repeal of the act gave the disgusted Chief Justice
"duties to perform," as John Randolph expressed it. Marshall was
forthwith sent upon his circuit riding, and his fondly anticipated
relief from official labors vanished. Although he had engaged to write
the biography during the winter following Washington's death, not one
line of it had he penned at the time the contract for publication was
made in the autumn of 1802. He had, of course, done some reading of the
various histories of the period; but he had not even begun the
examination of Washington's papers, the subsequent study of which proved
so irksome to him.

After almost two years of bartering, a contract was made with Wayne to
print and sell the biography. This agreement, executed September 22,
1802, gave to the publisher the copyright in the United States and all
rights of the authors "in any part of North and South America and in the
West India Islands." The probable extent of the work was to be "four or
five volumes in Octavo, from four to five hundred pages" each; and it
was "supposed" that these would "be compleated in less than two
years"--Marshall's original estimate of time having now been doubled.

Wayne engaged to pay "one dollar for every volume of the aforesaid work
which may be subscribed for or which may be sold and paid for." It was
further covenanted that the publisher should "not demand" of the public
"a higher price than three dollars per volume in boards."[604] This
disappointed Marshall, who had insisted that the volumes must be sold
for four dollars each, a price which Wayne declared the people would not
pay.[605]

It would seem that for a long time Marshall tried to conceal the fact
that he was to be the author; and, when the first volume was about to be
issued, strenuously objected to the use of his name on the title-page.
However, Jefferson soon got wind of the project. The alert politician
took swift alarm and promptly suggested measures to counteract the
political poison with which he was sure Marshall's pen would infect
public opinion. He consulted Madison, and the two picked out the
brilliant and versatile Joel Barlow, then living in Paris, as the best
man to offset the evil labor in which Marshall was engaged.

"Mr. Madison and myself have cut out a piece of work for you," Jefferson
wrote Barlow, "which is to write the history of the United States, from
the close of the War downwards. We are rich ourselves in materials, and
can open all the public archives to you; but your residence here is
essential, because a great deal of the knowledge of things is not on
paper, but only within ourselves for verbal communication."

Then Jefferson states the reason for the "piece of work" which he and
Madison had "cut out" for Barlow: "John Marshall is writing the life of
Gen. Washington from his papers. It is intended to come out just in time
to influence the next presidential election." The imagination of the
party manager pictured Marshall's work as nothing but a political
pamphlet. "It is written therefore," Jefferson continues, "principally
with a view to electioneering purposes; but it will consequently be out
in time to aid you with information as well as to point out the
perversions of truth necessary to be rectified."[606]

Thus Marshall's book was condemned before a word of it had been written,
and many months before the contract with Wayne was signed--a
circumstance that was seriously to interfere with subscriptions to the
biography. Jefferson's abnormal sensitiveness to even moderate criticism
finally led him to the preparation of the most interesting and
untrustworthy of all his voluminous papers, as a reply to Marshall's
"Washington."[607]

News was sent to Republicans all over the country that Marshall's book
was to be an attack upon their party. Wayne tells Marshall and
Washington of the danger, but Washington testily assures the nervous
publisher that he need have no fear: "The democrats may say what they
please and I have expected they would say a great deal, but this is at
least not intended to be a party work nor will any candid man have cause
to make this charge."[608]

The contract signed, Wayne quickly put in motion the machinery to
procure subscribers. Of this mechanism, the most important part should
have been the postmasters, of whom Wayne expected to make profitable
use. There were twelve hundred of them, "each acquainted with all the
gentlemen of their respective neighborhoods ... and their neighbors
would subscribe at request, when they would not to a stranger.... All
letters to and from these men go free of postage," Wayne advised
Marshall, while assuring the anxious author that "every Post Master in
the United States holds a subscription paper."[609] But, thanks to
Jefferson, the postmasters were to prove poor salesmen of the product of
Marshall's pen.

Other solicitors, however, were also put to work: among them the
picturesque Mason Locke Weems, part Whitefield, part Villon, a
delightful mingling of evangelist and vagabond, lecturer and politician,
writer and musician.[610] Weems had himself written a "Life of
Washington" which had already sold extensively among the common
people.[611] He had long been a professional book agent with every
trick of the trade at his fingers' ends, and was perfectly acquainted
with the popular taste.

First, the parson-subscription agent hied himself to Baltimore.
"I average 12 sub^s pr day. _Thank God for that_," he wrote to
his employer. He is on fire with enthusiasm: "If the Work be done
handsomely, you will sell at least 20,000," he brightly prophesies.
Within a week Weems attacks the postmasters and insists that he be
allowed to secure sub-agents from among the gentry: "The Mass of Riches
and of Population in America lie in the Country. There is the wealthy
Yeomanry; and there the ready Thousands who w^{d.} instantly second you
were they but duly stimulated."[612]

Almost immediately Weems discovered a popular distrust of Marshall's
forthcoming volumes: "The People are very fearful that it will be
prostituted to party purposes," he informs Wayne. "_For Heaven's Sake,
drop now and then a cautionary Hint to John Marshall Esq._ Your all is
at stake with respect to this work. If it be done in a generally
acceptable manner you will make your fortune. Otherwise the work will
fall an Abortion from the press."[613]

Weems's apprehension grew. Wayne had written that the cities would yield
more subscribers than the country. "For a moment, admit it," argues
Weems: "Does it follow that the Country is a mere blank, a cypher not
worth your notice? Because there are 30,000 wealthy families in the City
and but 20,000 in the Country, must nothing be tried to enlist 5000, at
least of these 20,000??? If the _Fed^s sh^d be disappointed_, and the
Demo^s disgusted with Gen^{l.} Marshals performance, will it not be very
convenient to have 4 to 5000 good Rustic Blades to lighten your shelves
& to shovel in the Dol^$."[614]

The dean of book agents evidently was having a hard time, but his
resourcefulness kept pace with his discouragement: "Patriotic
Orations--Gazetter Puffs--Washingtonian Anecdotes, Sentimental, Moral
Military and Wonderful--All sh^d be Tried," he advises Wayne.[615]
Again, he notes the failure of the postmasters to sell Marshall's now
much-talked-of book. "In six months," he writes from Martinsburg,
Virginia, "the P. Master here got 1. In 1/2 day. _I thank God_, I've got
13 sub^s."[616]

The outlook for subscriptions was even worse in New England. Throughout
the whole land, there was, it seems, an amazing indifference to
Washington's services to the Nation. "I am sorry to inform you," Wayne
advised Marshall and his associate, "that the Prospect of an extensive
Subscription is gloomy in N. England, particularly they argue it is too
Expensive and wait for a cheaper Edition--'tis like Americans, Mr.
Wolcott and Mr. Pickering say they are loud in their professions, but
attempt to touch their purses and they shut them in a moment."[617]

Writing from Fredericksburg, Virginia, Weems at last mingles cheer with
warning: "Don't indulge a fear--let no sigh of thine arise. Give _Old
Washington fair play_ and all will be well. Let but the _Interior_ of
the Work be Liberal & the _Exterior Elegant_, and a Town House & a
Country House, a Coach and Sideboard and Massy Plate shall be thine."
Still, he declared, "I sicken when I think how much may be marr^d."[618]

A week later found the reverend solicitor at Carlisle, Pennsylvania, and
here the influence of politics on the success of Marshall's undertaking
again crops out: "The place had been represented to me," records Weems,
"as a Nest of Anti Washingtonian Hornets who w^d draw their Stings at
mention of his name--and the Fed [torn] Lawyers are all gone to
York--However, I dash^d in among them and _thank God_ have obtain^d
already 17 good names."[619]

By now even the slow-thinking Bushrod Washington had become suspicious
of Jefferson's postmasters: "The postmasters being (I believe)
Democrats.[620] Are you sure they will feel a disposition to advance the
work?"[621] Later he writes: "I would not give one honest soliciting
agent for 1250 quiescent postmasters."[622]

A year passed after the first subscriptions were made, and not even the
first volume had appeared. Indeed, no part of the manuscript had been
finished and sent to the publisher. Wayne was exasperated. "I am
extremely anxious on this subject," he complains to Bushrod Washington,
"as the Public evince dissatisfaction at the delay. Each hour I am
questioned either verbally or by letter relative to it & its
procrastination. The subscription seems to have received a check in
consequence of an opinion that it is uncertain when the work will go to
press. _Twelve thousand_ dollars is the Total Cash yet rece^d--not quite
4,000 subscribers."[623]

By November, 1803, many disgusted subscribers are demanding a refund of
the money, and Wayne wants the contract changed to the payment of a lump
sum. The "Public [are] exclaiming against the price of 3 Doll^s per
vol.," and his sanguine expectations have evaporated: "I did hope that I
should realize _half_ the number of subscribers you contemplated,
_thirty thousand_; ... but altho' _two active_, and twelve hundred other
agents have been employed 12 months, the list of names _does_ not amount
to _one seventh_ of the contemplated number."[624]

Wayne insists on purchasing the copyright "for a _moderate, specifick_
sum" so that he can save himself from loss and "that the Publick disgust
may be removed." He has heard, he says, and quite directly, that the
British rights have been sold "at two thousand doll^s!!!"--and this in
spite of the fact that, only the previous year, Marshall and Washington
"expected _Seventy_ Thousand."[625]

At last, more than three years after Marshall had decided to embark upon
the uncertain sea of authorship, he finished the first of the five
volumes. And such a mass of manuscript! "It will make _at least_ Eight
hundred pages!!!!" moaned the distraught publisher. At that rate,
considering the small number of subscribers and the greatly increased
cost of paper and labor,[626] Wayne would be ruined. No title-page had
been sent, and Marshall's son, who had brought the manuscript to
Philadelphia, "astonished" Wayne by telling him "that his father's name
was not to appear in the Title."[627]

When Marshall learned that the publisher demanded a title-page bearing
his name, he insisted that this was unnecessary and not required by the
copyright law. "I am unwilling," he hastened to write Wayne, "to be
named in the book or in the clerk's office as the author of it, if it be
avoidable." He cannot tell how many volumes there will be, or even
examine, before some time in May, 1804, Washington's papers relating to
the period of his two administrations. The first volume he wants
"denominated _an introduction_." It is too long, he admits, and
authorizes Wayne to split it, putting all after "the peace of 1763" into
the second volume.[628]

Marshall objects again to appearing as the author: "My repugnance to
permitting my name to appear in the title still continues, but it shall
yield to your right to make the best use you can of the copy." He does
not think that "the name of the author being given or withheld can
produce any difference in the number of subscribers"; but, since he does
not wish to leave Wayne "in the Opinion that a real injury has been
sustained," he would "submit scruples" to Wayne and Washington, "only
requesting that [his] name may not be given but on mature consideration
and conviction of its propriety." In any case, Marshall declares: "I
wish not my title in the judiciary of the United States to be annexed to
it."

He writes at great length about punctuation, paragraphing, capital
letters, and spelling, giving minute directions, but leaves much to
Wayne's judgment. As to spelling: "In any doubtful case I wou^d
decidedly prefer to follow Johnson."[629] Two other long letters about
details of printing the first volume followed. By the end of March,
1804, his second volume was ready.[630]

He now becomes worried about "the inaccuracies ... the many and great
defects in composition" of the first two volumes; but "the hurried
manner in which it is press^d forward renders this inevitable." He begs
Bushrod Washington to "censure and alter freely.... You mistake me very
much if you think I rank the corrections of a friend with the bitter
sarcasms of a foe, or that I shou^d feel either wounded or chagrined at
my inattentions being pointed out by another."[631]

Once more the troubled author writes his associate, this time about the
spelling of "Chesapeak" and "enterprise," the size of the second volume,
and as to "the prospects of subscribers."[632] Not until June, 1804, did
Marshall give the proof-sheets of the first volume even "a hasty
reading" because of "the pressure of ... official business."[633]
Totally forgotten was the agreed plan to publish maps in a separate
volume, although it was thus "stated in the prospectus."[634] He blandly
informs the exasperated publisher that he must wait a long time after
publishing the volumes describing the Revolution and those on the
Presidency of Washington before the manuscript of the last volume can
be sent to press--this when many subscribers were clamoring for the
return of the money they had paid, and the public was fast losing
interest in the book. Large events had meanwhile filled the heavens of
popular interest, and George Washington's heroic figure was already
becoming dim and indistinct.

The proof-sheets of the second volume were now in Marshall's hands; but
the toil of writing, "super-intending the copying," and various other
avocations "absolutely disabled" him, he insists, from giving them any
proper examination. He had no idea that he had been so careless in his
writing and is anxious to revise the work for a second edition. He
complains of his health and says he must spend the summer in the
mountains, where, of course, he "cannot take the papers with [him] to
prosecute the work." He will, however, read the pages of the first two
volumes while on his vacation.

The manuscript of the third he had finished and sent to Bushrod
Washington.[635] When Wayne saw the length of it, his Quaker blood was
heated to wrath. Did Marshall's prolixity know no limit? The first two
volumes had already cost the publisher far more than the estimate--would
not Washington persuade Marshall to be more concise?[636]

By midsummer of 1804 the first two volumes appeared. They were a dismal
performance. Nevertheless, one or two Federalist papers praised them,
and Marshall was as pleased as any youthful writer by a first
compliment. He thanks Wayne for sending the reviews and comments on one
of them: "The very handsome critique in the 'Political and Commercial
Register' was new to me." He modestly admits: "I cou^d only regret that
there was in it more of panuegyric than was merited. The editor ...
manifests himself to be master of a style of a very superior order and
to be, of course, a very correct judge of the composition of Others."

Marshall is somewhat mollified that his parentage of the biography has
been revealed: "Having, Heaven knows how reluctantly, consented against
my judgement to be known as the author of the work in question I cannot
be insensible to the opinions entertained of it. But, I am much more
solicitous to hear the strictures upon it"--than commendation of
it--because, he says, these would point out defects to be corrected. He
asks Wayne, therefore, to send to him at Front Royal, Virginia, "every
condemnatory criticism.... I shall not attempt to polish every sentence;
that wou^d require repeated readings & a long course of time; but I wish
to correct obvious imperfections & the animadversions of others wou^d
aid me very much in doing so."[637]

[Illustration: A PART OF MARSHALL'S LIST OF CORRECTIONS FOR HIS LIFE OF
WASHINGTON]

Within three weeks Marshall had read his first volume in the form in
which it had been delivered to subscribers, and was "mortified beyond
measure to find that it [had] been so carelessly written." He had not
supposed that so many "inelegancies ... cou^d have appeared in it," and
regrets that he must require Wayne to reset the matter "so
materially." He informs his publisher, nevertheless, that he is starting
on his vacation in the Alleghanies; and he promises that when he returns
he "will ... review the corrections" he has made in the first volume,
although he would "not have time to reperuse the whole volume."[638]

Not for long was the soul of the perturbed author to be soothed with
praise. He had asked for "strictures"; he soon got them. Wayne promptly
sent him a "Magazine[639] containing a piece condemnatory of the work."
Furthermore, the books were not going well; not a copy could the
publisher sell that had not been ordered before publication. "I have all
those on hand which I printed over the number of subscribers," Wayne
sourly informs the author.

In response to Marshall's request for time for revision, Wayne is now
willing that he shall take all he wishes, since "present prospects would
not induce [him] to republish," but he cautions Marshall to "let the
idea of a 2^d edit. revised and corrected remain a secret"; if the
public should get wind of such a purpose the stacks of volumes in
Wayne's printing house would never be sold. He must have the manuscript
of the "_fourth_ vol. by the last of September at furthest.... Can I
have it?--or must I dismiss my people."

At the same time he begs Marshall to control his redundancy: "The first
and second vols. have cost me (1500) fifteen hundred dollars more than
calculated!"[640]

It was small wonder that Marshall's first two bulky books, published in
the early summer of 1804, were not hailed with enthusiasm. In volume one
the name of Washington was mentioned on only two minor occasions
described toward the end.[641] The reader had to make his way through
more than one hundred thousand words without arriving even at the cradle
of the hero. The voyages of discovery, the settlements and explorations
of America, and the history of the Colonies until the Treaty of Paris in
1763, two years before the Stamp Act of 1765, were treated in dull and
heavy fashion.

The author defends his plan in the preface: No one connected narrative
tells the story of all the Colonies and "few would ... search through
the minute details"; yet this he held to be necessary to an
understanding of the great events of Washington's life. So Marshall had
gathered the accounts of the various authorities[642] in parts of the
country and in England, and from them made a continuous history. If
there were defects in the book it was due to "the impatience ... of
subscribers" which had so hastened him.

The volume is poorly done; parts are inaccurate.[643] To Bacon's
Rebellion are given only four pages.[644] The story of the Pilgrims is
fairly well told.[645] A page is devoted to Roger Williams and six
sympathetic lines tell of his principles of liberty and toleration.[646]
The Salem witchcraft madness is well treated.[647] The descriptions of
military movements constitute the least disappointing parts of the
volume. The beginnings of colonial opposition to British rule are
tiresomely set out; and thus at last, the reader arrives within twelve
years of Bunker Hill.

Marshall admits that every event of the Revolutionary War has been told
by others who had examined Washington's "immensely voluminous
correspondence," and that he had copied these authors, sometimes using
their very language. Still, he promises the reader "a particular account
of his [Washington's] own life."[648]

One page and three lines at the beginning of the second volume are all
that Marshall gives of the ancestry, birth, environment, upbringing,
education, and experiences of George Washington, up to the nineteenth
year of his age. On the second page the hero, fully uniformed and
accoutred, is plunged into the French and Indian Wars. Braddock's
defeat, already described in the first volume, is repeated and
elaborated.[649] Six lines, closing the first chapter, disposes of
Washington in marriage and describes the bride.[650]

About three pages are devoted to the Stamp Act speeches in the British
Parliament; while but one short paragraph is given to the immortal
resolutions of Patrick Henry and the passage of them by the Virginia
House of Burgesses. Not a word describes the "most bloody" debate over
them, and Henry's time-surviving speech is not even referred to.[651]
All mention of the fact that Washington was a fellow member with Henry
and voted for the resolutions is omitted. Henry's second epoch-making
speech at the outbreak of the Revolution is not so much as hinted at,
nor is any place found for the Virginia Resolutions for Arming and
Defense, which his unrivaled eloquence carried.

The name of the supreme orator of the Revolution is mentioned for the
second time in describing the uprising against Lord Dunmore,[652] and
then Marshall adds this footnote: "The same gentleman who had introduced
into the assembly of Virginia the original resolution against the stamp
act."[653]

Marshall's account of the development of the idea of independence is
scattered.[654] He gives with unnecessary completeness certain local
resolutions favoring it,[655] while to the great Declaration less than
two pages[656] are assigned. It is termed "this important paper"; and a
footnote disposes of the fact that "Mr. Jefferson, Mr. John Adams, Mr.
Franklin, Mr. Sherman, and Mr. R. R. Livingston, were appointed to
prepare this declaration; and the draft reported by the committee has
been generally attributed to Mr. Jefferson."[657] A report of the talk
between Washington and Colonel Paterson of the British Army, concerning
the title by which Washington insisted upon being addressed,[658] is
given one and one third times the space that is bestowed upon the
Declaration of Independence.

Marshall is satisfactory only when dealing with military operations. He
draws a faithful picture of the condition of the army;[659] quotes
Washington's remorseless condemnations of the militia,[660] short
enlistments, and the democratic spirit among men and officers.[661] When
writing upon such topics, Marshall is spirited; his pages are those of
the soldier that, by nature, he was.

The earliest objection to Marshall's first two volumes came from
American Tories, who complained of the use of the word "enemy" as
applied to the British military forces. Wayne reluctantly calls
Marshall's attention to this. Marshall replies: "You need make no
apology for mentioning to me the criticism of the word 'enemy.' I will
endeavor to avoid it where it can be avoided."[662]

Unoffended by such demands, Marshall was deeply chagrined by other and
entirely just criticisms. Why, he asks, had not some one pointed out to
him "some of those objections ... to the plan of the work" before he
wrote any part of it? He wishes "very sincerely" that this had been
done. He "should very readily have relinquished [his own] opinion ...
if [he] had perceiv^d that the public taste required a different
course." Thus, by implication, he blames Wayne or Bushrod Washington,
for his own error of judgment.

Marshall also reproaches himself, but in doing so he saddles on the
public most of the burden of his complaints: "I ought, indeed, to have
foreseen that the same impatience which precipitated the publication
wou^d require that the life and transactions of Mr. Washington should be
immediately entered upon." Even if he had stuck to his original plans,
still, he "ought to have departed from them so far as to have composed
the introductory volume at leizure after the principal work was
finished."

Marshall's "mortification" is, he says, also "increased on account of
the careless manner in which the work has been executed." For the first
time in his life he had been driven to sustained and arduous mental
labor, and he found, to his surprise, that he "had to learn that under
the pressure of constant application, the spring of the mind loses its
elasticity.... But regrets for the past are unavailing," he sighs.
"There will be great difficulty in retrieving the reputation of the
first volume.... I have therefore some doubts whether it may not be as
well to drop the first volume for the present--that is not to speak of a
republication of it."

He assures Wayne that he need have no fears that he will mention a
revised edition, and regrets that the third volume is also too long; his
pen has run away with him. He would shorten it if he had the copy once
more; but since that cannot be, perhaps Wayne might omit the last
chapter. Brooding over the "strictures" he had so confidently asked for,
he grows irritable. "Whatever might have been the execution, the work
wou^d have experienced unmerited censure. We must endeavor to rescue
what remains to be done from such [criticism] as is deserved. I wish you
to consult Mr. Washington."[663]

Another very long letter from Front Royal quickly follows. Marshall
again authorizes the publisher himself to cut the bulk of the third
volume, in the hope that it "will not be so defective.... It shall be my
care to render the 4th more fit for the public eye." He promises Wayne
that, in case of a second edition,[664] he will shorten his interminable
pages which shall also "receive very material corrections." But a
corrected and improved edition! "On this subject ... I remain silent....
Perhaps a free expression of my thoughts ... may add to the current
which seems to set against it." Let the public take the first printing
"before a second is spoken of."[665]

Washington drew on the publisher[666] and wrote Wayne that "the
disappointment will be very great if it is not paid." In December, 1804,
Wayne sent the first royalty. It amounted to five thousand
dollars.[667]

Our author needed money badly. "I do not wish to press you upon the
subject of further remittances but they will be highly acceptable,"
Washington tells Wayne, "particularly to Mr. Marshall, whose
arrangements I know are bottomed upon the expectation of the money he is
to receive from you."[668] In January, 1805, Wayne sent Washington
another thousand dollars--"which I have paid," says Washington, "to Mr.
Marshall as I shall also do of the next thousand you remit."[669] Thus
pressed, Wayne sends more money, and by January 1, 1805, Marshall and
Washington have received the total sum of eight thousand seven hundred
and sixty dollars.[670]

Toward the end of February, 1805, Marshall completed the manuscript of
the fourth volume. He was then in Washington, and sent two copies from
there to Philadelphia by Joseph Hopkinson, who had just finished his
notable work in the Chase impeachment trial. "They are both in a rough
state; too rough to be sent ... but it was impossible to have them
recopied," Marshall writes Wayne. He admits they are full of errors in
capitalization, punctuation, and spelling, but adds, "it has absolutely
been impossible to make corrections in these respects."[671] This he
"fears will produce considerable difficulty." Small wonder, with the
Chase trial absorbing his every thought and depressing him with heavy
anxiety.

Marshall's relief from the danger of impeachment is at once reflected
in his correspondence with Wayne. Two weeks after the acquittal of
Chase, he placidly informs his publisher that the fifth volume will not
be ready until the spring of 1806 at the earliest. It is "not yet
commenced," he says, "but I shall however set about it in a few days."
He explains that there will be little time to work on the biography.
"For the ensuing twelve months I shall scarcely have it in my power to
be five in Richmond."[672] Three months later he informs Wayne that it
will be "absolutely impossible" to complete the final volume by the time
mentioned. "I regret this very seriously but it is a calamity for which
there is no remedy."

The cause of this irremediable calamity was "a tour of the mountains"--a
journey to be made "for [his] own health and that of [his] family" from
which he "cannot return till October." He still "laments sincerely that
an introductory volume was written because [he] finds it almost
impossible to compress the civil administration into a single volume. In
doing it," he adds, "I shall be compelled to omit several interesting
transactions & to mutilate others."[673]

At last Marshall's eyes are fully opened to what should have been plain
to him from the first. Nobody wanted a tedious history of the discovery
and settlement of America and of colonial development, certainly not
from his pen. The subject had been dealt with by more competent authors.

But the terrible years following the war, the Constitutional period,
the Administrations of Washington and the first half of that of Adams,
the decisive part played by Washington throughout this critical time of
founding and constructing--all these were virgin fields. They
constituted, too, as vital an epoch in American history as the
Revolution itself. Marshall's own life had been an important part of it,
and he was not unequipped to give it adequate treatment.

Had Marshall written of these years, it is probable that the well-to-do
Federalists alone would have purchased the thirty thousand sets that
Marshall originally counted on to be sold. He would have made all the
money he had expected, done a real public service, and achieved a solid
literary fame. His "Life of Washington" might have been the great
social, economic, political, and Constitutional history of the
foundation processes of the Government of the American Nation. His
entire five volumes would not have been too many for such a work.

But all this matter relating to the formative years of the Nation must
now be crowded between two covers and offered to an indifferent, if not
hostile, public--a public already "disgusted," as the publisher truly
declared, by the unattractive rehash of what had already been better
told.

Wayne again presses for a change in the contract; he wants to buy
outright Marshall's and Washington's interests, and end the bankrupting
royalty he is paying them: "If you were willing to take 70000$ for 30000
Sub^s I thought it would not be deemed illiberal in offering twenty
thousand dollars for four thousand subscribers--this was two-sevenths of
the original sum for less than _one-seventh_ of the subscribers
contemplated." Wayne asks Marshall and Washington to "state the lowest
sum" they will take. Subscriptions have stopped, and in three years he
has sold only "_two copies_ ... to non-subscribers." But the harried
publisher sends two thousand dollars more of royalty.[674]

In the autumn of 1805, upon returning from his annual vacation, Marshall
is anxious to get to work, and he must have the _Aurora_ and _Freneau's
Gazette_ quickly. His "official duties recommence ... on the 22^d of
November from which time they continue 'till the middle of March."
Repeating his now favorite phrase, he says, "It is absolutely impossible
to get the residue of the work completed in the short time which remains
this fall." He has been sorely vexed and is a cruelly overworked man:
"The unavoidable delays which have been experienced, the immense
researches among volumes of manuscript, & chests of letters & gazettes
which I am compelled to make will impede my progress so much that it is
absolutely impossible" to finish the book at any early date.[675]

Want of money continually embarrasses Marshall: "What payments my good
Sir, will it be in your power to make us in the course of this & the
next month?" Bushrod Washington asks Wayne. "I am particularly anxious,"
he explains, "on account of Mr. M.... His principal dependence is upon
this fund."[676] Marshall now gets down to earnest and continuous labor
and by July, 1806, actually finishes the fifth and only important volume
of the biography.[677]

During all these years the indefatigable Weems continued his engaging
career as book agent, and, like the subscribers he had ensnared, became
first the victim of hope deferred and then of unrealized expectations.
The delay in the publication of Marshall's first volumes and the
disfavor with which the public received them when finally they appeared,
had, it seems, cooled the ardor of the horseback-and-saddlebag
distributor of literary treasures. At all events, he ceases to write his
employer about Marshall's "Life of Washington," but is eager for other
books.[678] Twice only, in an interval of two years, he mentions
Marshall's biography, but without spirit or enthusiasm.[679] In the
autumn of 1806, he querulously refers to Marshall and Washington: "I did
not call on _you_ [Wayne] for increase of Diurnal Salary. I spoke to
Judge W. I hope and expect that he and Gen. M.[680] will do me
something."

Marshall's third volume, which had now appeared, is an improvement on
the first two. In it he continues his narrative of the Revolutionary War
until 1779, and his statement of economic and financial conditions[681]
is excellent. The account of the battles of Brandywine and Germantown,
in both of which he had taken part,[682] is satisfactory,[683] and his
picture of the army in retreat is vivid.[684] He faithfully relates the
British sentiment among the people.[685] Curiously enough, he is not
comprehensive or stirring in his story of Valley Forge.[686] His
descriptions of Lafayette and Baron von Steuben are worthy.[687] Again
and again he attacks the militia,[688] and is merciless in his criticism
of the slip-shod, happy-go-lucky American military system. These
shortcomings were offset, he says, only by the conduct of the
enemy.[689] The treatment of American prisoners is set forth in somber
words,[690] and he gives almost a half-page of text[691] and two and a
half pages of appendix[692] to the murder of Miss McCrea.

The story of the battle of Monmouth in which Marshall took part is told
with spirit.[693] Nineteen pages[694] are devoted to the history of the
alliance with the French monarch, and no better résumé of that event, so
fruitful of historic results, ever has been given. The last chapter
describes the arrival of the British Commission of Conciliation, the
propositions made by them, the American answer, the British attempts to
bribe Congress,[695] followed by the Indian atrocities of which the
appalling massacres at Kingston and Wyoming were the worst.

The long years of writing, the neglect and crudity of his first efforts,
and the self-reproval he underwent, had their effect upon Marshall's
literary craftsmanship. This is noticeable in his fourth volume, which
is less defective than those that preceded it. His delight in verbiage,
so justly ridiculed by Callender in 1799,[696] is a little subdued, and
his sense of proportion is somewhat improved. He again criticizes the
American military system and traces its defects to local
regulations.[697] The unhappy results of the conflict of State and
Nation are well presented.[698]

The most energetic narrative in the volume is that of the treason of
Benedict Arnold. In telling this story, Marshall cannot curb the
expression of his intense feeling against this "traitor, a sordid
traitor, first the slave of his rage, then purchased with gold."
Marshall does not economize space in detailing this historic betrayal of
America,[699] imperative as the saving of every line had become.

He relates clearly the circumstances that caused the famous compact
between Denmark, Sweden, and Russia known as "The Armed Neutrality,"
formed in order to check Great Britain's power on the seas. This was the
first formidable assertion of the principle of equality among nations on
the ocean. Great Britain's declaration of war upon Holland, because that
country was about to join "The Armed Neutrality," and because Holland
appeared to be looking with favor upon a commercial treaty which the
United States wished to conclude with her, is told with dispassionate
lucidity.[700]

Marshall gives a compact and accurate analysis--by far the best work he
has done in the whole four volumes--of the party beginnings discernible
when the clouds of the Revolutionary War began to break. He had now
written more than half a million words, and this description was the
first part of his work that could be resented by the Republicans. The
political division was at bottom economic, says Marshall--those who
advocated honest payment of public debts were opposed by those who
favored repudiation; and the latter were also against military
establishments and abhorred the idea of any National Government.[701]

The fourth volume ends with the mutiny of part of the troops, the
suppression of it, Washington's farewell to his officers, and his
retirement when peace was concluded.

Marshall's final volume was ready for subscribers and the public in the
autumn of 1807, just one year before the Federalist campaign for the
election of Jefferson's successor--four years later than Jefferson had
anticipated.[702] It was the only political part of Marshall's volumes,
but it had not the smallest effect upon the voters in the Presidential
contest.

Neither human events nor Thomas Jefferson had waited upon the
convenience of John Marshall. The Federalist Party was being reduced to
a grumbling company of out-of-date gentlemen, leaders in a bygone day,
together with a scattered following who, from force of party habit,
plodded along after them, occasionally encouraged by some local
circumstance or fleeting event in which they imagined an "issue" might
be found. They had become anti-National, and, in their ardor for Great
Britain, had all but ceased to be American. They had repudiated
democracy and assumed an attitude of insolent superiority, mournful of
a glorious past, despairing of a worthy future.[703]

Marshall could not hope to revive the fast weakening Federalist
organization. The most that he could do was to state the principles upon
which opposing parties had been founded, and the determinative conflicts
that had marked the evolution of them and the development of the
American Nation. He could only set forth, in plain and simple terms,
those antagonistic ideas which had created party divisions; and although
the party to which one group of those ideas had given life was now
moribund, they were ideas, nevertheless, which would inevitably create
other parties in the future.

The author's task was, therefore, to deal not only with the years that
had gone; but, through his treatment of the past, with the years that
were to come. He must expound the philosophy of Nationalism as opposed
to that of Localism, and must enrich his exposition by the unwritten
history of the period between the achievement of American Independence
and the vindication of it in our conflict with France.

Marshall was infinitely careful that every statement in his last volume
should be accurate; and, to make sure of this, he wrote many letters to
those who had first-hand knowledge of the period. Among others he wrote
to John Adams, requesting permission to use his letters to Washington.
Adams readily agreed, although he says, "they were written under great
agitation of mind at a time when a cruel necessity compelled me to take
measures which I was very apprehensive would produce the evils which
have followed from them. If you have detailed the events of the last
years of General Washington's Life, you must have run the Gauntlet
between two infuriated factions, armed with scorpions.... It is a period
which must however be investigated, but I am very confident will never
be well understood."[704]

Because of his lack of a sense of proportion in planning his "Life of
Washington," and the voluminousness of the minor parts of it, Marshall
had to compress the vital remainder. Seldom has a serious author been
called upon to execute an undertaking more difficult. Marshall
accomplished the feat in creditable fashion. Moreover, his fairness,
restraint, and moderation, even in the treatment of subjects regarding
which his own feelings were most ardent, give to his pages not only the
atmosphere of justice, but also something of the artist's touch.

Washington's Nationalism is promptly and skillfully brought into the
foreground.[705] An excellent account of the Society of the Cincinnati
contains the first covert reflection on Jefferson.[706] But the state of
the country under the Articles of Confederation is passed over with
exasperating brevity--only a few lines are given to this basic
subject.[707]

The foundation of political parties is stated once more and far
better--"The one ... contemplated America as a nation," while "the other
attached itself to state authorities." The first of these was made up of
"men of enlarged and liberal minds ... who felt the full value of
national honour, and the full obligation of national faith; and who were
persuaded of the insecurity of both, if resting for their preservation
on the concurrence of thirteen distinct sovereignties"; and with these
far-seeing and upright persons were united the "officers of the army"
whose experience in war had weakened "local prejudices."[708]

Thus, by mentioning the excellence of the members of one party, and by
being silent upon the shortcomings of those of the other party, Marshall
imputes to the latter the reverse of those qualities which he praises--a
method practiced throughout the book, and one which offended Jefferson
and his followers more than a direct attack could have done.

He succinctly reviews the attempts at union,[709] and the disputes
between America and Great Britain over the Treaty of Peace;[710] he
quickly swings back to the evolution of political parties and, for the
third time, reiterates his analysis of debtor and Localist as against
creditor and Nationalist.

"The one [party] struggled ... for the exact observance of public and
private engagements"; to them "the faith of a nation, or of a private
man was deemed a sacred pledge." These men believed that "the distresses
of individuals" could be relieved only by work and faith, "not by a
relaxation of the laws, or by a sacrifice of the rights of others." They
thought that "the imprudent and idle could not be protected by the
legislature from the consequences of their indiscretion; but should be
restrained from involving themselves in difficulties, by the conviction
that a rigid compliance with contracts would be enforced." Men holding
these views "by a natural association of ideas" were "in favour of
enlarging the powers of the federal government, and of enabling it to
protect the dignity and character of the nation abroad, and its
interests at home."[711]

With these principles Marshall sharply contrasts those of the other
party: "Viewing with extreme tenderness the case of the debtor, their
efforts were unceasingly directed to his relief"; they were against "a
faithful compliance with contracts"--such a measure they thought "too
harsh to be insisted on ... and one which the people would not bear."
Therefore, they favored "relaxing ... justice," suspending the
collection of debts, remitting taxes. These men resisted every attempt
to transfer from their own hands into those of Congress all powers that
were, in reality, National. Those who held to such "lax notions of
honor," were, in many States, "a decided majority of the people," and
were very powerful throughout the country. Wherever they secured
control, paper money, delay of justice, suspended taxes "were the fruits
of their rule"; and where they were in the minority, they fought at
every election for the possession of the State Governments.

In this fashion Marshall again states those antipodal philosophies from
which sprang the first two American political parties. With something
like skill he emphasizes the conservative and National idea thus: "No
principle had been introduced [in the State Governments] which could
resist the wild projects of the moment, give the people an opportunity
to reflect, and allow the good sense of the nation time for exertion."
The result of "this instability in principles which ought if possible to
be rendered immutable, produced a long train of ills."[712] The twin
spirits of repudiation and Localism on one side, contending for the
mastery against the companion spirits of faith-keeping and Nationalism
on the other, were from the very first, says Marshall, the source of
public ill-being or well-being, as one or the other side prevailed.

Then follows a review of the unhappy economic situation which, as
Marshall leaves the reader to infer, was due exclusively to the
operation of the principles which he condemns by the mere statement of
them.[713] So comes the Philadelphia Convention of 1787 that was deemed
by many "an illegitimate meeting."[714]

Although Washington presided over, and was the most powerful influence
in, the Constitutional Convention, Marshall allots only one short
paragraph to that fact.[715] He enumerates the elements that prepared to
resist the Constitution; and brings out clearly the essential fact that
the proposed government of the Nation was, by those who opposed it,
considered to be "foreign." He condenses into less than two pages his
narrative of the conflict over ratification, and almost half of these
few lines is devoted to comment upon "The Federalist."

Marshall writes not one line or word of Washington's power and
activities at this critical moment. He merely observes, concerning
ratification, that "the intrinsic merits of the instrument would not
have secured" the adoption of the Constitution, and that even in some of
the States that accepted it "a majority of the people were in the
opposition."[716]

He tells of the pressure on Washington to accept the Presidency. To
these appeals and Washington's replies, he actually gives ten times more
space than he takes to describe the formation, submission, and
ratification of the Constitution itself.[717] After briefly telling of
Washington's election to the Presidency, Marshall employs twenty pages
in describing his journey to New York and his inauguration.

Then, with quick, bold strokes, he lays the final color on his picture
of the state of the country before the new government was established,
and darkens the tints of his portrayal of those who were opposing the
Constitution and were still its enemies. In swift contrast he paints the
beginnings of better times, produced by the establishment of the new
National Government: "The new course of thinking which had been inspired
by the adoption of a constitution that was understood to prohibit all
laws impairing the obligation of contracts, had in a great measure
restored that confidence which is essential to the internal prosperity
of nations."[718]

He sets out adequately the debates over the first laws passed by
Congress,[719] and is generous in his description of the characters and
careers of both Jefferson and Hamilton when they accepted places in
Washington's first Cabinet.[720] He joyfully quotes Washington's second
speech to Congress, in which he declares that "to be prepared for war is
one of the most effectual means of preserving peace"; and in which the
people are adjured "to discriminate the spirit of liberty from that of
licentiousness."[721]

An analysis of Hamilton's First Report on the Public Credit follows.
The measures flowing from it "originated the first regular and
systematic opposition to the principles on which the affairs of the
union were administered."[722] In condensing the momentous debate over
the establishment of the American financial system, Marshall gives an
excellent summary of the arguments on both sides of that controversy. He
states those of the Nationalists, however, more fully than the arguments
of those who opposed Hamilton's plan.[723]

While attributing to Hamilton's financial measures most of the credit
for improved conditions, Marshall frankly admits that other causes
contributed to the new-found prosperity: By "progressive industry, ...
the influence of the constitution on habits of thinking and acting," and
especially by "depriving the states of the power to impair the
obligation of contracts, or to make any thing but gold and silver a
tender in payment of debts, the conviction was impressed on that portion
of society which had looked to the government for relief from
embarrassment, that personal exertions alone could free them from
difficulties; and an increased degree of industry and economy was the
natural consequence."[724]

Perhaps the most colorful pages of Marshall's entire work are those in
which he describes the effect of the French Revolution on America, and
the popular hostility to Washington's Proclamation of Neutrality[725]
and to the treaty with Great Britain negotiated by John Jay.[726]

In his treatment of these subjects he reveals some of the sources of his
distrust of the people. The rupture between the United States and the
French Republic is summarized most inadequately. The greatest of
Washington's state papers, the immortal "Farewell Address,"[727] is
reproduced in full. The account of the X. Y. Z. mission is provokingly
incomplete; that of American preparations for war with France is less
disappointing. Washington's illness and death are described with
feeling, though in stilted language; and Marshall closes his literary
labors with the conventional analysis of Washington's character which
the world has since accepted.[728]

Marshall's fifth volume was received with delight by the disgruntled
Federalist leaders. A letter of Chancellor James Kent is typical of
their comments. "I have just finished ... the last Vol. of Washington's
Life and it is worth all the rest. It is an excellent History of the
Government and Parties in this country from Vol. 3 to the death of the
General."[729]

Although it had appeared too late to do them any harm at the election of
1804, the Republicans and Jefferson felt outraged by Marshall's history
of the foundation period of the Government. Jefferson said nothing for a
time, but the matter was seldom out of his thoughts. Barlow, it seems,
had been laggard in writing a history from the Republican point of view,
as Jefferson had urged him to do.

Three years had passed since the request had been made, and Barlow was
leaving for Paris upon his diplomatic mission. Jefferson writes his
congratulations, "yet ... not unmixed with regret. What is to become of
our past revolutionary history? Of the antidotes of truth to the
misrepresentations of Marshall?"[730]

Time did not lessen Jefferson's bitterness: "Marshall has written libels
on one side,"[731] he writes Adams, with whom a correspondence is
opening, the approach of old age having begun to restore good relations
between these former enemies. Jefferson's mind dwells on Marshall's work
with increasing anxiety: "On the subject of the history of the American
Revolution ... who can write it?" he asks. He speaks of Botta's
"History,"[732] criticizing its defects; but he concludes that "the work
is nevertheless a good one, more judicious, more chaste, more classical,
and more true than the party diatribe of Marshall. Its greatest fault is
in having taken too much from him."[733]

Marshall's "party diatribe" clung like a burr in Jefferson's mind and
increased his irritation with the passing of the years. Fourteen years
after Marshall's last volume appeared, Justice William Johnson of the
Supreme Court published an account of the period[734] covered by
Marshall's work, and it was severely criticized in the _North American
Review_. Jefferson cheers the despondent author and praises his
"inestimable" history: "Let me ... implore you, dear Sir, to finish
your history of parties.... We have been too careless of our future
reputation, while our tories will omit nothing to place us in the
wrong." For example, Marshall's "Washington," that "five-volumed
libel, ... represents us as struggling for office, and not at all to
prevent our government from being administered into a monarchy."[735]

In his long introduction to the "Anas," Jefferson explains that he would
not have thought many of his notes "worth preserving but for their
testimony against the only history of that period which pretends to have
been compiled from authentic and unpublished documents." Had Washington
himself written a narrative of his times from the materials he
possessed, it would, of course, have been truthful: "But the party
feeling of his biographer, to whom after his death the collection was
confided, has culled from it a composition as different from what Genl.
Washington would have offered, as was the candor of the two characters
during the period of the war.

"The partiality of this pen is displayed in lavishments of praise on
certain military characters, who had done nothing military, but who
afterwards, & before he wrote, had become heroes in party, altho' not
in war; and in his reserve on the merits of others, who rendered signal
services indeed, but did not earn his praise by apostatising in peace
from the republican principles for which they had fought in war."

Marshall's frigidity toward liberty "shews itself too," Jefferson
continues, "in the cold indifference with which a struggle for the most
animating of human objects is narrated. No act of heroism ever kindles
in the mind of this writer a single aspiration in favor of the holy
cause which inspired the bosom, & nerved the arm of the patriot warrior.
No gloom of events, no lowering of prospects ever excites a fear for the
issue of a contest which was to change the condition of man over the
civilized globe.

"The sufferings inflicted on endeavors to vindicate the rights of
humanity are related with all the frigid insensibility with which a monk
would have contemplated the victims of an _auto da fé_. Let no man
believe that Gen. Washington ever intended that his papers should be
used for the suicide of the cause, for which he had lived, and for which
there never was a moment in which he would not have died."

Marshall's "abuse of these materials," Jefferson charges, "is chiefly
however manifested in the history of the period immediately following
the establishment of the present constitution; and nearly with that my
memorandums [the "Anas"] begin. Were a reader of this period to form his
idea of it from this history alone, he would suppose the republican
party (who were in truth endeavoring to keep the government within the
line of the Constitution, and prevent it's being monarchised in
practice) were a mere set of grumblers, and disorganisers, satisfied
with no government, without fixed principles of any, and, like a British
parliamentary opposition, gaping after loaves and fishes, and ready to
change principles, as well as position, at any time, with their
adversaries."[736]

Jefferson denounces Hamilton and his followers as "monarchists,"
"corruptionists," and other favorite Jeffersonian epithets, and Marshall
is again assailed: "The horrors of the French revolution, then raging,
aided them mainly, and using that as a raw head and bloody bones they
were enabled by their stratagems of X. Y. Z. in which this historian was
a leading mountebank, their tales of tub-plots, Ocean massacres, bloody
buoys, and pulpit lyings, and slanderings, and maniacal ravings of their
Gardiners, their Osgoods and Parishes, to spread alarm into all but the
firmest breasts."[737]

Criticisms of Marshall's "Life of Washington" were not, however,
confined to Jefferson and the Republicans. Plumer thought the plan of
the work "preposterous."[738] The Reverend Samuel Cooper Thatcher of
Boston reviewed the biography through three numbers of the _Monthly
Anthology_.[739] "Every reader is surprized to find," writes Mr.
Thatcher, "the history of North America, instead of the life of an
individual.... He [Washington] is always presented ... in the pomp of
the military or civil costume, and never in the ease and undress of
private life." However, he considers Marshall's fifth volume excellent.
"We have not heard of a single denial of his fidelity.... In this
respect ... his work [is] _unique_ in the annals of political history."

Thatcher concludes that Marshall's just and balanced treatment of his
subject is not due to a care for his own reputation: "We are all so full
of agitation and effervescence on political topicks, that a man, who
keeps his temper, can hardly gain a hearing." Indeed, he complains of
Marshall's fairness: he writes as a spectator, instead of as "one, who
has himself descended into the arena ... and is yet red with the wounds
which he gave, and smarting with those which his enemies inflicted in
return"; but the reviewer charges that these volumes are full of
"barbarisms" and "grammatical impurities," "newspaper slang," and
"unmeaning verbiage."

The Reverend Timothy Flint thought that Marshall's work displayed more
intellect and labor than "eloquence and interest."[740] George Bancroft,
reviewing Sparks's "Washington," declared that "all that is contained in
Marshall is meagre and incomplete in comparison."[741] Even the British
critics were not so harsh as the _New York Evening Post_, which
pronounced the judgment that if the biography "bears any traces of its
author's uncommon powers of mind, it is in the depths of dulness which
he explored."[742]

The British critics were, of course, unsparing. The _Edinburgh Review_
called Marshall's work "unpardonably deficient in all that constitutes
the soul and charm of biography.... We look in vain, through these stiff
and countless pages, for any sketch or anecdote that might fix a
distinguishing feature of private character in the memory.... What
seemed to pass with him for dignity, will, by his reader, be pronounced
dullness and frigidity."[743] _Blackwood's Magazine_ asserted that
Marshall's "Life of Washington" was "a great, heavy book.... One gets
tired and sick of the very name of Washington before he gets half
through these ... prodigious ... octavos."[744]

Marshall was somewhat compensated for the criticisms of his work by an
event which soon followed the publication of his last volume. On August
29, 1809, he was elected a corresponding member of the Massachusetts
Historical Society. In a singularly graceful letter to John Eliot,
corresponding secretary of the Society at that time, Marshall expresses
his thanks and appreciation.[745]

As long as he lived, Marshall worried over his biography of Washington.
When anybody praised it, he was as appreciative as a child. In 1827,
Archibald D. Murphey eulogized Marshall's volumes in an oration, a copy
of which he sent to the Chief Justice, who thanks Murphey, and adds:
"That work was hurried into a world with too much precipitation, but I
have lately given it a careful examination and correction. Should
another edition appear, it will be less fatiguing, and more worthy of
the character which the biographer of Washington ought to sustain."[746]

Toilsomely he kept at his self-imposed task of revision. In 1816,
Bushrod Washington wrote Wayne to send Marshall "the last three volumes
in sheets (the two first he has) that he may devote this winter to their
correction."[747]

When, five years later, the Chief Justice learned that Wayne was
actually considering the risk of bringing out a new edition, Marshall's
delight was unbounded. "It is one of the most desirable objects I have
in this life to publish a corrected edition of that work. I would not on
any terms, could I prevent it, consent that one other set of the first
edition should be published."[748]

Finally, in 1832, the revised biography was published. Marshall clung to
the first volume, which was issued separately under the title "History
of the American Colonies." The remaining four volumes were, seemingly,
reduced to two; but they were so closely printed and in such
comparatively small type that the real condensation was far less than
it appeared to be. The work was greatly improved, however, and is to
this day the fullest and most trustworthy treatment of that period, from
the conservative point of view.[749]

Fortunately for Marshall, the work required of him on the Bench gave him
ample leisure to devote to his literary venture. During the years he
consumed in writing his "Life of Washington" he wrote fifty-six opinions
in cases decided in the Circuit Court at Richmond, and in twenty-seven
cases determined by the Supreme Court. Only four of them[750] are of
more than casual interest, and but three of them[751] are of any
historical consequence. All the others deal with commercial law,
practice, rules of evidence, and other familiar legal questions. In only
one case, that of Marbury _vs._ Madison, was he called upon to deliver
an opinion that affected the institutions and development of the
Nation.


FOOTNOTES:

[592] See vol. II, 210-12, of this work.

[593] See _infra_; also vol. II, 211, of this work.

[594] Marshall to James M. Marshall, April 1, 1804. MS.

[595] Marshall to Peters, Oct. 12, 1815, Peters MSS. Pa. Hist. Soc.

[596] Several persons were ambitious to write the life of Washington.
David Ramsay and Mason Locke Weems had already done so. Noah Webster was
especially keen to undertake the task, and it was unfortunate that he
was not chosen to do it.

[597] Washington to Wayne, April 11, 1800, Dreer MSS. Pa. Hist. Soc.

[598] _Ib._

[599] Bushrod Washington to Wayne, Dec. 11, 1801, Dreer MSS. _loc. cit._

[600] Wayne to Bushrod Washington, Dec. 10, 1801, Dreer MSS. _loc. cit._

[601] Bushrod Washington to Wayne, Dec. 11, 1801, Dreer MSS. _loc. cit._

[602] The division was to be equal between Marshall and Washington.

[603] Bushrod Washington to Wayne, Dec. 11, 1801, Dreer MSS. _loc. cit._

[604] "Articles of Agreement" between C. P. Wayne and Bushrod
Washington, Sept. 22, 1802. (Dreer MSS. _loc. cit._) Marshall's name
does not appear in the contract, Washington having attended to all
purely business details of the transaction.

[605] Wayne to Bushrod Washington, May 16, 1802, Dreer MSS. _loc. cit._

[606] Jefferson to Barlow, May 3, 1802, _Works_: Ford, IX, 372.

[607] The "Anas," _Works_: Ford, I, 163-430, see _infra_. The "Anas" was
Jefferson's posthumous defense. It was arranged for publication as early
as 1818, but was not given to the public until after his death. It first
appeared in the edition of Jefferson's works edited by his grandson,
Thomas Jefferson Randolph. "It is the most precious mélange of all sorts
of scandals you ever read." (Story to Fay, Feb. 5, 1830, Story, II, 33.)

[608] Bushrod Washington to Wayne, Nov. 19, 1802, Dreer MSS. _loc. cit._

[609] Wayne to Marshall, Feb. 17, 1803, Dreer MSS. _loc. cit._

[610] Weems is one of the most entertaining characters in American
history. He was born in Maryland, and was one of a family of nineteen
children. He was educated in London as a physician, but abandoned
medicine for the Church, and served for several years as rector of two
or three little Episcopal churches in Maryland and ministered
occasionally at Pohick Church, in Truro Parish (sometimes called Mount
Vernon Parish), Virginia. In this devout occupation he could not earn
enough to support his very large family. So he became a professional
book agent--the greatest, perhaps, of that useful fraternity.

On horseback he went wherever it seemed possible to sell a book, his
samples in his saddlebags. He was a natural orator, a born entertainer,
an expert violinist; and these gifts he turned to good account in his
book-selling activities.

If a political meeting was to be held near any place he happened upon,
Weems would hurry to it, make a speech, and advertise his wares. A
religious gathering was his joy; there he would preach and exhort--and
sell books. Did young people assemble for merrymaking, Weems was in his
element, and played the fiddle for the dancing. If he arrived at the
capital of a State when the Legislature was in session, he would
contrive to be invited to address the Solons--and procure their
subscriptions.

[611] Weems probably knew more of the real life of the country, from
Pennsylvania southward, than any other one man; and he thoroughly
understood American tastes and characteristics. To this is due the
unparalleled success of his _Life of Washington_. In addition to this
absurd but engaging book, Weems wrote the _Life of Gen. Francis Marion_
(1805); the _Life of Benjamin Franklin_ (1817); and the _Life of William
Penn_ (1819). He was also the author of several temperance pamphlets,
the most popular of which was the _Drunkard's Looking Glass_. Weems died
in 1825.

Weems's _Life of Washington_ still enjoys a good sale. It has been one
of the most widely purchased and read books in our history, and has
profoundly influenced the American conception of Washington. To it we
owe the grotesque and wholly imaginary stories of young Washington and
the cherry tree, the planting of lettuce by his father to prove to the
boy the designs of Providence, and other anecdotes that make that
intensely human founder of the American Nation an impossible and
intolerable prig.

The only biography of Weems is _Parson Weems_, by Lawrence C. Wroth, a
mere sketch, but trustworthy and entertaining.

[612] Weems to Wayne, Dec. 10, 1802, Dreer MSS. _loc. cit._

[613] Same to same, Dec. 14, 1802, Dreer MSS. _loc. cit._

[614] Weems to Wayne, Dec. 17, 1802, Dreer MSS. _loc. cit._

[615] Same to same, Dec. 22, 1802, Dreer MSS. _loc. cit._

[616] Same to same, April 2, 1803, Dreer MSS. _loc. cit._

[617] Wayne to Bushrod Washington, Jan. 23, 1803, Dreer MSS. _loc. cit._

[618] Weems to Wayne, April 8, 1803, Dreer MSS. _loc. cit._

[619] Same to same, April 18, 1803, Dreer MSS. _loc. cit._

[620] Bushrod Washington, like the other Federalists, would not call his
political opponents by their true party name, Republicans: he styled
them "democrats," the most opprobrious term the Federalists could then
think of, excepting only the word "Jacobins." (See vol. II, 439, of this
work.)

[621] Washington to Wayne, March 1, 1803, Dreer MSS. _loc. cit._

[622] Same to same. March 23, 1803, Dreer MSS. _loc. cit._

[623] Wayne to Washington, Oct. 23, 1803, Dreer MSS. _loc. cit._

An interesting sidelight on the commercial methods of the times is
displayed by a circular which Wayne sent to his agents calling for money
from subscribers to Marshall's _Life of Washington_: "The remittance may
be made through the Post Office, and should any danger be apprehended,
you can cut a Bank note in two parts and send each by separate mails."
(Wayne's Circular, Feb. 17, 1803, Dreer MSS. _loc. cit._)

[624] This list was published in the first edition. It is a good
directory of the most prominent Federalists and of the leading
Republican politicians of the time. "T. Jefferson, P.U.S." and each
member of his Cabinet subscribed; Marshall himself was a subscriber for
his own book, and John C. Calhoun, a student at Yale College at the
time, was another. In the cities most of the lawyers took Marshall's
book.

[625] Wayne to Bushrod Washington, Nov. 3, 1803, Dreer MSS. _loc. cit._

It would seem from this letter that Marshall and Washington had reduced
their lump cash price from $100,000 to $70,000. In stating his expenses,
Wayne says that the painter "Gilbert Stuart demanded a handsome sum for
the privilege of Engraving from his Original" portrait of Washington.

[626] See letter last cited.

[627] Wayne to Bushrod Washington, Dec. 16, 1803, Dreer MSS. _loc. cit._

[628] Marshall to Wayne, Dec. 23, 1803, Dreer MSS. _loc. cit._

[629] Marshall to Wayne, Jan. 10, 1804, Dreer MSS. _loc. cit._

[630] Marshall to Bushrod Washington, March 25, 1804, Dreer MSS. _loc.
cit._

[631] Same to same, April, 1804, Dreer MSS. _loc. cit._

[632] Same to same, April 29, 1804, Dreer MSS. _loc. cit._

[633] Marshall to Wayne, June 1, 1804, Dreer MSS. _loc. cit._

[634] Same to same, June 6, 1804, Dreer MSS. _loc. cit._

[635] Marshall to Wayne, June 10, July 5, July 8, 1804, Dreer MSS. _loc.
cit._

[636] Wayne to Bushrod Washington, Aug. 20, 1804, Dreer MSS. _loc. cit._

[637] Marshall to Wayne, July 20, 1804, Dreer MSS. _loc. cit._

[638] Marshall to Wayne, Aug. 10, 1804, Dreer MSS. _loc. cit._

[639] _Literary Magazine and American Register of Philadelphia_, July,
1804. The reviewer makes many of the criticisms that appeared on the
completion of the biography. (See _infra_, 261-79.)

[640] Wayne to Marshall, Aug. 20, 1804, Dreer MSS. _loc. cit._

[641] The affair at Little Meadows and the defeat of Braddock.
(Marshall: _Life of George Washington_, 1st ed. I, 356-58, 368-71.)

[642] These were: Belknap, Belsham, Chalmers, Dodsley, Entick or
Entinck, Gordon, Hutchinson, Minot, Ramsay, Raynal, Robertson, Russell,
Smith, Stedman, Stith, Trumbull.

[643] For example, Marshall's description of Sir William Berkeley, who
was, the reader is informed, "distinguished ... by the mildness of his
temper, the gentleness of his manners and ... popular virtues."
(Marshall, 1st ed. I, 72.)

[644] _Ib._ 188-92; and see vol. I, 6, of this work.

[645] _Ib._ 1st ed. I, 86-89.

[646] _Ib._ 111-12.

[647] _Ib._; see Notes, 9-18.

[648] _Ib._ X.

[649] _Ib._ 1st ed. II, 14-20.

[650] _Ib._ 67.

[651] Marshall, 1st ed. II, 82-83; and see vol. I, 66, of this work.

[652] See vol. I, 74-79, of this work.

[653] Marshall, 1st ed. II, 193.

[654] _Ib._ 160-69.

[655] _Ib._ 374-75.

[656] _Ib._ 377-78.

[657] Marshall, 1st ed. II, 377.

[658] _Ib._ 386-89.

[659] _Ib._ 390-94.

[660] _Ib._ 417-18, 445-46; and see vol. I, 83-86, of this work.

[661] Marshall, 1st ed. II, 259-61.

[662] Marshall to Wayne, Aug. 10, 1804, Dreer MSS. _loc. cit._

[663] Marshall to Wayne from Front Royal, Virginia, Sept. 3, 1804, Dreer
MSS. _loc. cit._

[664] Marshall spent many years preparing this second edition of his
_Washington_, which appeared in 1832, three years before Marshall's
death. See _infra_, 272-73.

[665] Marshall to Wayne, Sept. 8, 1804, Dreer MSS. _loc. cit._

[666] The amount of this draft is not stated.

[667] This would seem to indicate that Wayne had been able to collect
payment on the first two volumes, from only two thousand five hundred
subscribers, since, by the contract, Marshall and Washington together
were to receive one dollar for each book sold.

[668] Washington to Wayne, Dec. 25, 1804, Dreer MSS. _loc. cit._

[669] Same to same, Jan. 15, 1805, Dreer MSS _loc. cit._

[670] Same to same, Dec. 30, 1804, Dreer MSS. _loc. cit._

[671] Marshall to Wayne, Feb. 27, 1805, Dreer MSS. _loc. cit._

[672] Marshall to Wayne, March 16, 1805, Dreer MSS. _loc. cit._

[673] Same to same, June 29, 1805, Dreer MSS. _loc. cit._

[674] Wayne to Washington, July 4, 1804, Dreer MSS. _loc. cit._

[675] Marshall to Wayne, Oct. 5, 1805, Dreer MSS. _loc. cit._

[676] Washington to Wayne, April 1, 1806, Dreer MSS. _loc. cit._ It was
in this year that the final payments for the Fairfax estate were made
and the deed executed to John and James M. Marshall and their
brother-in-law Rawleigh Colston. See vol. II, footnote to 211, and vol.
IV, chap. III, of this work.

[677] Same to same, July 14, 1806, Dreer MSS. _loc. cit._

[678] Weems's orders for books are trustworthy first-hand information
concerning the literary tastes of the American people at that time, and
the extent of education among the wealthy. Writing from Savannah,
Georgia, August, 1806, he asks for "Rippons hymns, Watts D^{o.},
Newton's D^{o.}, Methodist D^{o.}, Davies Sermons, Massillons D^{o.},
Villiage D^{o.}, Whitfields D^{o.}, Fuller [the eminent Baptist divine,]
Works, viz. His Gospel its own evidence, Gospel Worthy of all
Acceptation, Pilgrim's progress, Baxter's S^{ts.} Rest, Call to the
Unconverted, Alarm, by Allein, Hervey's Works, Rushe's Medical Works;
All manner of School Books, Novels by the cart load, particularly
Charlotte Temple ... 2 or 300 of Charlotte Temple ... Tom Paines
Political Works, Johnson's Poets boun^d in green or in any handsome
garb, particularly Miltons Paradise lost, Tompsons Seasons, Young's N.
Thoughts wou'd do well." (Weems to Wayne, Aug. 1806, Dreer MSS. _loc.
cit._)

Another order calls for all the above and also for "Websters Spell^g
book, Universal D^{o.}, Fullers Backslider, Booths reign of Grace,
Looking Glass for the mind, Blossoms of Morality, Columbian Orator,
Enticks Dictionary, Murrays Grammar, Enfield's Speaker, Best Books on
Surveying, D^{o.} on Navigation, Misses Magazine, Vicar of Wakefield,
Robinson Crusoe, Divine Songs for Children, Pamela Small." In this
letter forty-four different titles are called for.

[679] Weems to Wayne, Jan. 28, 1804, and Aug. 25, 1806, Dreer MSS. _loc.
cit._

[680] Same to same, Sept. 20, 1806, Wayne MSS. _loc. cit._ This letter
is written from Augusta, Georgia. Among other books ordered in it, Weems
names twelve copies each of "Sallust, Corderius, Eutropius, Nepos,
Caesar's Commentaries, Virgil Delph., Horace Delphini, Cicero D^{o.}, Ovid
D^{o.}"; and nine copies each of "Greek Grammar, D^{o.} Testament, Lucian,
Xenophon."

[681] Marshall, III, 28-42.

[682] See vol. I, 93-98, 102, of this work.

[683] Marshall, III, chaps. III and IV.

[684] See vol. I, 98-101, of this work.

[685] Marshall, III, 43-48, 52.

[686] _Ib._ 319, 330, 341-50; and see vol. I, 110-32, of this work.

[687] Marshall, III, 345, 347-49.

[688] _Ib._ 50-53, 62.

[689] Marshall, III, 59. "No species of licentiousness was unpracticed.
The plunder and destruction of property was among the least offensive of
the injuries sustained." The result "could not fail to equal the most
sanguine hopes of the friends of the revolution. A sense of personal
wrongs produced a temper, which national considerations had been found
too weak to excite.... The great body of the people flew to arms."

[690] _Ib._ 20, 22, 24, 27, 386. See also vol. I, 115-16, of this work,
and authorities there cited.

[691] Marshall, III, 246-47.

[692] _Ib._ Notes, 4-6.

[693] _Ib._ chap. 8; and see vol. I, 134-38, of this work.

[694] Marshall, III, 366-85.

[695] _Ib._ 486-96.

[696] See vol. II, 405, of this work.

[697] Marshall, IV, 114-15.

[698] _Ib._ 188.

[699] _Ib._ 247-65; see vol. I, 143-44, of this work.

[700] Marshall, IV, 284-88.

[701] Marshall, IV, 530-31.

[702] See Jefferson's letter to Barlow, _supra_.

[703] See _supra_, chap. III, and _infra_, chap. VI; and see especially
vol. IV, chap. I, of this work.

[704] Adams to Marshall, July 17, 1806, MS.

This letter is most important. Adams pictures his situation when
President: "A first Magistrate of a great Republick with a General
officer under him, a Commander in Chief of the Army, who had ten
thousand times as much Influence Popularity and Power as himself, and
that Commander in Chief so much under the influence of his Second in
command [Hamilton], ... the most treacherous, malicious, insolent and
revengeful enemy of the first Magistrate is a Picture which may be very
delicate and dangerous to draw. But it must be drawn....

"There is one fact ... which it will be difficult for posterity to
believe, and that is that the measures taken by Senators, Members of the
House, some of the heads of departments, and some officers of the Army
to force me to appoint General Washington ... proceeded not from any
regard to him ... but merely from an intention to employ him as an
engine to elevate Hamilton to the head of affairs civil as well as
military."

[705] He was "accustomed to contemplate America as his country, and to
consider ... the interests of the whole." (Marshall, V, 10.)

[706] _Ib._ 24-30.

[707] _Ib._ 31-32.

[708] _Ib._ 33-34.

[709] _Ib._ 45-47.

[710] Marshall, V, 65.

[711] _Ib._ 85-86.

[712] Marshall, V, 85-87.

[713] _Ib._ 88-89.

[714] Marshall, V, 105. Marshall's account of the causes and objects of
Shays's Rebellion is given wholly from the ultra-conservative view of
that important event. (_Ib._ 123.)

[715] _Ib._ 128-29.

[716] _Ib._ 132.

[717] _Ib._ 133-50.

[718] Marshall, V, 178-79. Thus Marshall, writing in 1806, states one of
the central principles of the Constitution as he interpreted it from the
Bench years later in three of the most important of American judicial
opinions--Fletcher _vs._ Peck, Sturgis _vs._ Crowninshield, and the
Dartmouth College case. (See _infra_, chap. X; also vol. IV, chaps. IV
and V, of this work.)

[719] Marshall, V, 198-210.

[720] _Ib._ 210-13. At this point Marshall is conspicuously, almost
ostentatiously impartial, as between Jefferson and Hamilton. His
description of the great radical is in terms of praise, almost
laudation; the same is true of his analysis of Hamilton's work and
character. But he gives free play to his admiration of John Adams.
(_Ib._ 219-20.)

[721] _Ib._ 230-32.

[722] Marshall, V, 241.

[723] _Ib._ 243-58.

[724] _Ib._ 271.

[725] "That system to which the American government afterwards
inflexibly adhered, and to which much of the national prosperity is to
be ascribed." (_Ib._ 408.)

[726] See vol. II, chaps. I to IV, of this work.

[727] Marshall, V, 685-709.

[728] _Ib._ 773.

[729] James Kent to Moss Kent, July 14, 1807, Kent MSS. Lib. Cong.

[730] Jefferson to Barlow, April 16, 1811, _Works_: Ford, XI, 205.

[731] Jefferson to Adams, June 15, 1813, _ib._ 296.

[732] Botta: _History of the War of the Independence of the United
States of America_. This work, published in Italian in 1809, was not
translated into English until 1820; but in 1812-13 a French edition was
brought out, and that is probably the one Jefferson had read.

[733] Jefferson to Adams, Aug. 10, 1815, _Works_: Ford, XI, 485.

[734] Johnson: _Sketches of the Life and Correspondence of General
Nathanael Greene_. This biography was even a greater failure than
Marshall's _Washington_. During this period literary ventures by judges
seem to have been doomed.

[735] Jefferson to Johnson, March 4, 1823, _Works_: Ford, XII, 277-78.

[736] _Works_: Ford, I, 165-67.

[737] _Ib._ 181-82.

[738] Plumer, March 11, 1808, "Diary," Plumer MSS. Lib. Cong.

[739] May, June, and August numbers, 1808, _Monthly Anthology and Boston
Review_, V, 259, 322, 434. It appears from the minutes of the Anthology
Society, publishers of this periodical, that they had a hard time in
finding a person willing to review Marshall's five volumes. Three
persons were asked to write the critique and declined. Finally, Mr.
Thatcher reluctantly agreed to do the work.

[740] Flint, in London _Athenæum_ for 1835, 803.

[741] _North American Review_, XLVI, 483.

[742] _New York Evening Post_, as quoted in Allibone: _Dictionary of
English Literature and British and American Authors_, II, 1227.

[743] _Edinburgh Review_, Oct. 1808, as quoted in Randall, II, footnote
to 40.

[744] _Blackwood's Edinburgh Magazine_, XVII, 179.

[745] Marshall to Eliot, Sept. 20, 1809, MSS. of the Mass. Hist. Soc.

[746] Marshall to Murphey, Oct. 6, 1827, _Papers of Archibald D.
Murphey_: Hoyt, I, 365-66.

[747] Washington to Wayne, Nov. 26, 1816, Dreer MSS. _loc. cit._

[748] Marshall to Washington, Dec. 27, 1821, MS.

[749] So popular did this second edition become that, three years after
Marshall's death, a little volume, _The Life of Washington_, was
published for school-children. The publisher, James Crissy of
Philadelphia, states that this small volume is "printed from the
author's own manuscript," thus intimating that Marshall had prepared it.
(See Marshall, school ed.)

[750] Talbot _vs._ Seeman, United States _vs._ Schooner Peggy, Marbury
_vs._ Madison, and Little _vs._ Barreme.

[751] The first three in above note.




CHAPTER VI

THE BURR CONSPIRACY

    My views are such as every man of honor and every good citizen
    must approve. (Aaron Burr.)

    His guilt is placed beyond question. (Jefferson.)

    I never believed him to be a Fool. But he must be an Idiot or a
    Lunatic if he has really planned and attempted to execute such
    a Project as is imputed to him. But if his guilt is as clear
    as the Noonday Sun, the first Magistrate ought not to have
    pronounced it so before a Jury had tryed him. (John Adams.)


On March 2, 1805, not long after the hour of noon, every Senator of the
United States was in his seat in the Senate Chamber. All of them were
emotionally affected--some were weeping.[752] Aaron Burr had just
finished his brief extemporaneous address[753] of farewell. He had
spoken with that grave earnestness so characteristic of him.[754] His
remarks produced a curious impression upon the seasoned politicians and
statesmen, over whose deliberations he had presided for four years. The
explanation is found in Burr's personality quite as much as in the
substance of his speech. From the unprecedented scene in the Senate
Chamber when the Vice-President closed, a stranger would have judged
that this gifted personage held in his hands the certainty of a great
and brilliant career. Yet from the moment he left the Capital, Aaron
Burr marched steadily toward his doom.

An understanding of the trial of Aaron Burr and of the proceedings
against his agents, Bollmann and Swartwout, is impossible without a
knowledge of the events that led up to them; while the opinions and
rulings of Chief Justice Marshall in those memorable controversies are
robbed of their color and much of their meaning when considered apart
from the picturesque circumstances that produced them. This chapter,
therefore, is an attempt to narrate and condense the facts of the Burr
conspiracy in the light of present knowledge of them.

Although in a biography of John Marshall it seems a far cry to give so
much space to that episode, the import of the greatest criminal trial in
American history is not to be fully grasped without a summary of the
events preceding it. Moreover, the fact that in the Burr trial Marshall
destroyed the law of "constructive treason" requires that the
circumstances of the Burr adventure, as they appeared to Marshall, be
here set forth.

A strong, brave man who, until then, had served his country well, Aaron
Burr was in desperate plight when on the afternoon of March 2 he walked
along the muddy Washington streets toward his lodging. He was a ruined
man, financially, politically, and in reputation. Fourteen years of
politics had destroyed his once extensive law practice and plunged him
hopelessly into debt. The very men whose political victory he had
secured had combined to drive him from the Republican Party.

The result of his encounter with Hamilton had been as fatal to his
standing with the Federalists, who had but recently fawned upon him, as
it was to the physical being of his antagonist. What now followed was as
if Aaron Burr had been the predestined victim of some sinister
astrology, so utterly did the destruction of his fortunes appear to be
the purpose of a malign fate.

His fine ancestry now counted for nothing with the reigning politicians
of either party. None of them cared that he came of a family which, on
both sides, was among the worthiest in all the country.[755] His superb
education went for naught. His brilliant services as one of the youngest
Revolutionary officers were no longer considered--his heroism at Quebec,
his resourcefulness on Putnam's staff, his valor at Monmouth, his daring
and tireless efficiency at West Point and on the Westchester lines,
were, to these men, as if no such record had ever been written.

[Illustration: AARON BURR]

Nor, with those then in power, did Burr's notable public services in
civil life weigh so much as a feather in his behalf. They no longer
remembered that only a few years earlier he had been the leader of his
party in the National Senate, and that his appointment to the then
critically important post of Minister to France had been urged by the
unanimous caucus of his political associates in Congress. None of the
notable honors that admirers had asserted to be his due, nor yet his
effective work for his party, were now recalled. The years of
provocation[756] which had led, in an age of dueling,[757] to a
challenge of his remorseless personal, professional, and political enemy
were now unconsidered in the hue and cry raised when his shot, instead
of that of his foe, proved mortal.

Yet his spirit was not broken. His personal friends stood true; his
strange charm was as potent as ever over most of those whom he met face
to face; and throughout the country there were thousands who still
admired and believed in Aaron Burr. Particularly in the West and in the
South the general sentiment was cordial to him; many Western Senators
were strongly attached to him; and most of his brother officers of the
Revolution who had settled beyond the Alleghanies were his friends.[758]
Also, he was still in vigorous middle life, and though delicate of frame
and slight of stature, was capable of greater physical exertion than
most men of fewer years.

What now should the dethroned political leader do? Events answered that
question for him, and, beckoned forward by an untimely ambition, he
followed the path that ended amid dramatic scenes in Richmond, Virginia,
where John Marshall presided over the Circuit Court of the United
States.

Although at the time Jefferson had praised what he called Burr's
"honorable and decisive conduct"[759] during the Presidential contest in
the House in February of 1801, he had never forgiven his associate for
having received the votes of the Federalists, nor for having missed, by
the merest chance, election as Chief Magistrate.[760] Notwithstanding
that Burr's course as Vice-President had won the admiration even of
enemies,[761] his political fall was decreed from the moment he cast his
vote on the Judiciary Bill in disregard of the rigid party discipline
that Jefferson and the Republican leaders then exacted.[762]

Even before this, the constantly increasing frigidity of the President
toward him, and the refusal of the Administration to recognize by
appointment any one recommended by him for office in New York,[763] had
made it plain to all that the most Burr could expect was Jefferson's
passive hostility. Under these circumstances, and soon after his
judiciary vote, the spirited Vice-President committed another
imprudence. He attended a banquet given by the Federalists in honor of
Washington's birthday. There he proposed this impolitic toast: "To the
union of all honest men." Everybody considered this a blow at Jefferson.
It was even more offensive to the Administration than his judiciary vote
had been.[764]

From that moment all those peculiar weapons which politicians so well
know how to use for the ruin of an opponent were employed for the
destruction of Aaron Burr. Moreover, Jefferson had decided not only that
Burr should not again be Vice-President, but that his bitterest enemy
from his own State, George Clinton, should be the Republican candidate
for that office; and, in view of Burr's strength and resourcefulness,
this made necessary the latter's political annihilation.[765] "Never in
the history of the United States did so powerful a combination of rival
politicians unite to break down a single man as that which arrayed
itself against Burr."[766]

Nevertheless, Burr, who "was not a vindictive man,"[767] did not
retaliate for a long time.[768] But at last to retrieve himself,[769]
he determined to appeal to the people--at whose hands he had never
suffered defeat--and, in 1804, he became a candidate for the office of
Governor of New York. The New York Federalists, now reduced to a little
more than a strong faction, wished to support him, and were urged to do
so by many Federalist leaders of other States. Undoubtedly Burr would
have been elected but for the attacks of Hamilton.

At this period the idea of secession was stirring in the minds of the
New England Federalist leaders. Such men as Timothy Pickering, Roger
Griswold, Uriah Tracy, and James Hillhouse had even avowed separation
from the Union to be desirable and certain; and talk of it was
general.[770] All these men were warm and insistent in their support of
Burr for Governor, and at least two of them, Pickering and Griswold, had
a conference with him in New York while the campaign was in progress.

Plumer notes in his diary that during the winter of 1804, at a dinner
given in Washington attended by himself, Pickering, Hillhouse, Burr, and
other public men, Hillhouse "unequivocally declared that ... the United
States would soon form two distinct and separate governments."[771] More
than nine months before, certain of the most distinguished New England
Federalists had gone to the extreme length of laying their object of
national dismemberment before the British Minister, Anthony Merry, and
had asked and received his promise to aid them in their project of
secession.[772]

There was nothing new in the idea of dismembering the Union. Indeed, no
one subject was more familiar to all parts of the country. Since before
the adoption of the Constitution, it had been rife in the settlements
west of the Alleghanies.[773] The very year the National Government was
organized under the Constitution, the settlers beyond the Alleghanies
were much inclined to withdraw from the Union because the Mississippi
River had not been secured to them.[774] For many years this disunion
sentiment grew in strength. When, however, the Louisiana Purchase gave
the pioneers on the Ohio and the Mississippi a free water-way to the
Gulf and the markets of the world, the Western secessionist tendency
disappeared. But after the happy accident that bestowed upon us most of
the great West as well as the mouth of the Mississippi, there was in the
Eastern States a widely accepted opinion that this very fact made
necessary the partitioning of the Republic.

Even Jefferson, as late as 1803, did not think that outcome unlikely,
and he was prepared to accept it with his blessing: "If they see their
interest in separation, why should we take sides with our Atlantic
rather than our Mississippi descendants? It is the elder and the younger
brother differing. God bless them both, and keep them in union, if it be
for their good, but separate them, if it be better."[775]

Neither Spain nor Great Britain had ever given over the hope of dividing
the young Republic and of acquiring for themselves portions of its
territory. The Spanish especially had been active and unceasing in their
intrigues to this end, their efforts being directed, of course, to the
acquisition of the lands adjacent to them and bordering on the
Mississippi and the Ohio.[776] In this work more than one American was
in their pay. Chief of these Spanish agents was James Wilkinson, who had
been a pensioner of Spain from 1787,[777] and so continued until at
least 1807, the bribe money coming into his hands for several years
after he had been placed in command of the armies of the United
States.[778]

None of these plots influenced the pioneers to wish to become Spanish
subjects; the most that they ever desired, even at the height of their
dissatisfaction with the American Government, was independence from what
they felt to be the domination of the East. In 1796 this feeling reached
its climax in the Kentucky secession movement, one of its most active
leaders being Wilkinson, who declared his purpose of becoming "the
Washington of the West."[779]

By 1805, however, the allegiance of the pioneers to the Nation was as
firm as that of any other part of the Republic. They had become
exasperated to the point of violence against Spanish officials, Spanish
soldiers, and the Spanish Government. They regarded the Spanish
provinces of the Floridas and of Mexico as mere satrapies of a hated
foreign autocracy; and this indeed was the case. Everywhere west of the
Alleghanies the feeling was universal that these lands on the south and
southwest, held in subjection by an ancient despotism, should be
"revolutionized" and "liberated"; and this feeling was shared by great
numbers of people of the Eastern States.

Moreover, that spirit of expansion--of taking and occupying the unused
and misused lands upon our borders--which has been so marked through
American history, was then burning fiercely in every Western breast. The
depredations of the Spaniards had finally lashed almost to a frenzy the
resentment which had for years been increasing in the States bordering
upon the Mississippi. All were anxious to descend with fire and sword
upon the offending Spaniards.

Indeed, all over the Nation the conviction was strong that war with
Spain was inevitable. Even the ultra-pacific Jefferson was driven to
this conclusion; and, in less than ten months after Aaron Burr ceased to
be Vice-President, and while he was making his first journey through the
West and Southwest, the President, in two Messages to Congress,
scathingly arraigned Spanish misdeeds and all but avowed that a state of
war actually existed.[780]

Such, in broad outline, was the general state of things when Aaron Burr,
his political and personal fortunes wrecked, cast about for a place to
go and for work to do. He could not return to his practice in New York;
there his enemies were in absolute control and he was under indictment
for having challenged Hamilton. The coroner's jury also returned an
inquest of murder against Burr and two of his friends, and warrants for
their arrest were issued. In New Jersey, too, an indictment for murder
hung over him.[781]

Only in the fresh and undeveloped West did a new life and a new career
seem possible. Many projects filled his mind--everything was possible in
that inviting region beyond the mountains. He thought of forming a
company to dig a canal around the falls of the Ohio and to build a
bridge over that river, connecting Louisville with the Indiana shore. He
considered settling lands in the vast dominions beyond the Mississippi
which the Nation had newly acquired from Spain. A return to public life
as Representative in Congress from Tennessee passed through his mind.

But one plan in particular fitted the situation which the apparently
certain war with Spain created. Nearly ten years earlier,[782] Hamilton
had conceived the idea of the conquest of the Spanish possessions
adjacent to us, and he had sought to enlist the Government in support of
the project of Miranda to revolutionize Venezuela.[783] Aaron Burr had
proposed the invasion and capture of the Floridas, Louisiana, and Mexico
two years before Hamilton embraced the project,[784] and the desire to
carry out the plan continued strong within him. Circumstances seemed to
make the accomplishment of it feasible. At all events, a journey through
the West would enlighten him, as well as make clearer the practicability
of his other schemes.

Now occurred the most unfortunate and disgraceful incident of Burr's
life. In order to get money for his Mexican adventure, Burr played upon
the British Minister's hostile feelings toward America and, in doing so,
used downright falsehood. Although it was unknown at the time and not
out of keeping with the unwritten rules of the game called diplomacy as
then played, and although it had no effect upon the thrilling events
that brought Burr before Marshall, so inextricably has this shameful
circumstance been woven into the story of the Burr conspiracy, that
mention of it must be made. It was the first thoroughly dishonorable act
of Burr's tempestuous career.[785]

Five months after Pickering, Griswold, and other New England Federalists
had approached Anthony Merry with their plan to divide the Union, Burr
prepared to follow their example. He first sounded that diplomat through
a British officer, one Colonel Charles Williamson. The object of the New
England Senators and Representatives had been to separate their own and
other Northern States from the Union; the proposition that Williamson
now made to the British Minister was that Burr might do the same thing
for the Western States.[786] It was well known that the break-up of the
Republic was expected and hoped for by the British Government, as well
as by the Spaniards, and Williamson was not surprised when he found
Merry as favorably disposed toward a scheme for separation of the States
beyond the Alleghanies as he had been hospitable to the plan for the
secession of New England.

Of the results of this conference Burr was advised; and when he had
finished his preparations for his journey down the Ohio, he personally
called upon Merry. This time a part of his real purpose was revealed; it
was to secure funds.[787] Burr asked that half a million dollars be
supplied him[788] for the revolutionizing of the Western States, but he
did not tell of his dream about Mexico, for the realization of which the
money was probably to be employed. In short, Burr lied; and in order to
persuade Merry to secure for him financial aid he proposed to commit
treason. Henry Adams declares that, so far as the proposal of treason
was concerned, there was no difference between the moral delinquency of
Pickering, Griswold, Hillhouse, and other Federalists and that of Aaron
Burr.[789]

The eager and credulous British diplomat promised to do his best and
sent Colonel Williamson on a special mission to London to induce Pitt's
Ministry to make the investment.[790] It should be repeated that Burr's
consultations with the shallow and easily deceived Merry were not known
at the time. Indeed, they never were fully revealed until more than
three quarters of a century afterward.[791] Moreover, it has been
demonstrated that they had little or no bearing upon the adventure which
Burr finally tried to carry out.[792] He was, as has been said,
audaciously and dishonestly playing upon Merry's well-known hostility to
this country in order to extract money from the British Treasury.[793]
This attempt and the later one upon the Spanish Minister, who was
equally antagonistic to the United States, were revolting exhibitions of
that base cunning and duplicity which, at that period, formed so large
a part of secret international intrigue.[794]

On April 10, 1805, Burr left Philadelphia on horseback for Pittsburgh,
where he arrived after a nineteen days' journey. Before starting he had
talked over his plans with several friends, among them former Senator
Jonathan Dayton of New Jersey, who thereafter was a partner and fellow
"conspirator."[795]

Another man with whom Burr had conferred was General James Wilkinson.
Burr expected to meet him at Pittsburgh, but the General was delayed and
the meeting was deferred. Wilkinson had just been appointed Governor of
Upper Louisiana--one of the favors granted Burr during the Chase
impeachment--and was the intimate associate of the fallen politician in
his Mexican plan until, in a welter of falsehood and corruption, he
betrayed him. Indeed, it was Wilkinson who, during the winter of
1804-05, when Burr was considering his future, proposed to him the
invasion of Mexico and thus gave new life to Burr's old but never
abandoned hope.[796]

[Illustration]

On May 2, Burr started down the Ohio. When he reached Marietta,
Ohio, he was heartily welcomed. He next stopped at an island owned by
Harman Blennerhassett, who happened to be away. While inspecting the
grounds Burr was invited by Mrs. Blennerhassett to remain for dinner.
Thus did chance lay the foundations for that acquaintance which, later,
led to a partnership in the enterprise that was ended so disastrously
for both.

At Cincinnati, then a town of some fifteen hundred inhabitants, the
attentions of the leading citizens were markedly cordial. There Burr was
the guest of John Smith, then a Senator from Ohio, who had become
attached to Burr while the latter was Vice-President, and who was now
one of his associates in the plans under consideration. At Smith's house
he met Dayton, and with these friends and partners he held a long
conversation on the various schemes they were developing.[797]

A week later found him at the "unhealthy and inconsiderable
village"[798] of Louisville and from there he traveled by horseback to
Frankfort and Lexington. While in Kentucky he conferred with General
John Adair, then a member of the National Senate, who, like Smith and
Dayton, had in Washington formed a strong friendship for Burr, and was
his confidant.[799] Another eminent man with whom he consulted was John
Brown, then a member of the United States Senate from Kentucky, also an
admirer of Burr.

It would appear that the wanderer was then seriously considering the
proposal, previously made by Matthew Lyon, now a Representative in
Congress from Kentucky, that Burr should try to go to the National House
from Tennessee,[800] for Burr asked and received from Senator Brown
letters to friends in that State who could help to accomplish that
design. But not one word did Burr speak to General Adair, to Senator
Brown, or to any one else of his purpose to dismember the Nation.

Burr arrived at Nashville at the end of the month. The popular greeting
had grown warmer with each stage of his journey, and at the Tennessee
Capital it rose to noisy enthusiasm. Andrew Jackson, then Major-General
of the State Militia, was especially fervent and entertained Burr at his
great log house. A "magnificent parade" was organized in his honor. From
miles around the pioneers thronged into the frontier Capital. Flags
waved, fifes shrilled, drums rolled, cannon thundered. A great feast was
spread and Burr addressed the picturesque gathering.[801] Never in the
brightest days of his political success had he been so acclaimed.
Jackson, nine years before, when pleading with Congress to admit
Tennessee into the Union, had met and liked Burr, who had then advocated
statehood for that vigorous and aggressive Southern Territory. Jackson's
gratitude for Burr's services to the State in championing its
admission,[802] together with his admiration for the man, now ripened
into an ardent friendship.

His support of Burr well reflected that of the people among whom the
latter now found himself. Accounts of Burr's conduct as presiding
officer at the trial of Chase had crept through the wilderness; the
frontier newspapers were just printing Burr's farewell speech to the
Senate, and descriptions of the effect of it upon the great men in
Washington were passing from tongue to tongue. All this gilded the story
of Burr's encounter with Hamilton, which, from the beginning, had been
applauded by the people of the West and South.

Burr was now in a land of fighting men, where dueling was considered a
matter of honor rather than disgrace. He was in a rugged democracy which
regarded as a badge of distinction, instead of shame, the killing in
fair fight of the man it had been taught to believe to be democracy's
greatest foe. Here, said these sturdy frontiersmen, was the captain so
long sought for, who could lead them in the winning of Texas and Mexico
for America; and this Burr now declared himself ready to do--a purpose
which added the final influence toward the conquest of the mind and
heart of Andrew Jackson.

Floating down the Cumberland River in a boat provided by Jackson, Burr
encountered nothing but friendliness and encouragement. At Fort Massac
he was the guest of Wilkinson, with whom he remained for four days,
talking over the Mexican project. Soon afterward he was on his way down
the Mississippi from St. Louis in a larger boat with colored sails,
manned by six soldiers--all furnished by Wilkinson. After Burr's
departure Wilkinson wrote to Adair, with whom he had served in the
Indian wars, that "we must have a peep at the unknown world beyond me."

On June 25, 1805, Burr landed at New Orleans, then the largest city west
of the Alleghanies. There the ovation to the "hero" surpassed even the
demonstration at Nashville. Again came dinners, balls, fêtes, and every
form of public and private favor. So perfervid was the welcome to him
that the Sisters of the largest nunnery in Louisiana invited Burr to
visit their convent, and this he did, under the conduct of the
bishop.[803] Wilkinson had given him a letter of introduction to Daniel
Clark, the leading merchant of the city and the most influential man in
Louisiana. The letter contained this cryptic sentence: "To him [Burr] I
refer you for many things improper to letter, and which he will not say
to any other."[804]

The notables of the city were eager to befriend Burr and to enter into
his plans. Among them were John Watkins, Mayor of New Orleans, and James
Workman, Judge of the Court of Orleans County. These men were also the
leading members of the Mexican Association, a body of three hundred
Americans devoted to effecting the "liberation" of Mexico--a design in
which they accurately expressed the general sentiment of Louisiana. The
invasion of Mexico had become Burr's overmastering purpose, and it
gathered strength the farther he journeyed among the people of the West
and South. To effect it, definite plans were now made.[805]

The Catholic authorities of New Orleans approved Burr's project, and
appointed three priests to act as agents for the revolutionists in
Mexico.[806] Burr's vision of Spanish conquest seemed likely of
realization. The invasion of Mexico was in every heart, on every tongue.
All that was yet lacking to make it certain was war between Spain and
the United States, and every Western or Southern man believed that war
was at hand.

Late in July, Burr, with justifiably high hope, left New Orleans by the
overland route for Nashville, riding on horses supplied by Daniel Clark.
Everywhere he found the pioneers eager for hostilities. At Natchez the
people were demonstrative. By August 6, Burr was again with Andrew
Jackson, having ridden over Indian trails four hundred and fifty miles
through the swampy wilderness.[807]

The citizens of Nashville surpassed even their first welcome. At the
largest public dinner ever given in the West up to that time, Burr
entered the hall on Jackson's arm and was received with cheers. Men and
women vied with one another in doing him honor. The news Burr brought
from New Orleans of the headway that was being made regarding the
projected descent upon the Spanish possessions, thrilled Jackson; and
his devotion to the man whom all Westerners and Southerners had now come
to look upon as their leader knew no bounds.[808] For days Jackson and
Burr talked of the war with Spain which the bellicose Tennessee militia
general passionately desired, and of the invasion of Mexico which Burr
would lead when hostilities began.[809] At Lexington, at Frankfort,
everywhere, Burr was received in similar fashion. While in Kentucky he
met Henry Clay, who at once yielded to his fascination.

But soon strange, dark rumors, starting from Natchez, were sent flying
over the route Burr had just traveled with such acclaim. They were set
on foot by an American, one Stephen Minor, who was a paid spy of
Spain.[810] Burr, it was said, was about to raise the standard of
revolution in the Western and Southern States. Daniel Clark wished to
advise Burr of these reports and of the origin of them, but did not
know where to reach him. So he hastened to write Wilkinson that Burr
might be informed of the Spanish canard: "Kentucky, Tennessee, the State
of Ohio, ... with part of Georgia and Carolina, are to be bribed with
the plunder of the Spanish countries west of us, to separate from the
Union." And Clark added: "Amuse Mr. Burr with an account of it."[811]

Wilkinson himself had long contemplated the idea of dismembering the
Nation; he had even sounded some of his officers upon that subject.[812]
As we have seen, he had been the leader of the secession movement in
Kentucky in 1796. But if Burr ever really considered, as a practical
matter, the separation of the Western country from the Union, his
intimate contact with the people of that region had driven such a scheme
from his mind and had renewed and strengthened his long-cherished wish
to invade Mexico. For throughout his travels he had heard loud demands
for the expulsion of Spanish rule from America; but never, except
perhaps at New Orleans, a hint of secession. And if, during his journey,
Burr so much as intimated to anybody the dismemberment of the Republic,
no evidence of it ever has been produced.[813]

Ignorant of the sinister reports now on their way behind him, Burr
reached the little frontier town of St. Louis early in September and
again conferred with Wilkinson, assuring him that the whole South and
West were impatient to attack the Spaniards, and that in a short time an
army could be raised to invade Mexico.[814] According to the story which
the General told nearly two years afterward, Burr informed him that the
South and West were ripe for secession, and that Wilkinson responded
that Burr was sadly mistaken because "the Western people ... are bigoted
to Jefferson and democracy."[815]

Whatever the truth of this may be, it is certain that the rumors put
forth by his fellow Spanish agent had shaken Wilkinson's nerve for
proceeding further with the enterprise which he himself had suggested to
Burr. Also, as we shall see, the avaricious General had begun to doubt
the financial wisdom of giving up his profitable connection with the
Spanish Government. At all events, he there and then began to lay plans
to desert his associate. Accordingly, he gave Burr a letter of
introduction to William Henry Harrison, Governor of Indiana Territory,
in which he urged Harrison to have Burr sent to Congress from Indiana,
since upon this "perhaps ... the Union may much depend."[816]

Mythical accounts of Burr's doings and intentions had now sprung up in
the East. The universally known wish of New England Federalist leaders
for a division of the country, the common talk east of the Alleghanies
that this was inevitable, the vivid memory of a like sentiment formerly
prevailing in Kentucky, and the belief in the seaboard States that it
still continued--all rendered probable, to those, living in that
section, the schemes now attributed to Burr.

Of these tales the Eastern newspapers made sensations. A separate
government, they said, was to be set up by Burr in the Western States;
the public lands were to be taken over and divided among Burr's
followers; bounties, in the form of broad acres, were to be offered as
inducements for young men to leave the Atlantic section of the country
for the land of promise toward the sunset; Burr's new government was to
repudiate its share of the public debt; with the aid of British ships
and gold Burr was to conquer Mexico and establish a vast empire by
uniting that imperial domain to the revolutionized Western and Southern
States.[817] The Western press truthfully denied that any secession
sentiment now existed among the pioneers.

The rumors from the South and West met those from the North and East
midway; but Burr having departed for Washington, they subsided for the
time being. The brushwood, however, had been gathered--to burst into a
raging conflagration a year later, when lighted by the torch of
Executive authority in the hands of Thomas Jefferson.

During these months the Spanish officials in Mexico and in the Floridas,
who had long known of the hostility of American feeling toward them,
learned of Burr's plan to seize the Spanish possessions, and magnified
the accounts they received of the preparations he was making.[818]

The British Minister in Washington was also in spasms of nervous
anxiety.[819] When Burr reached the Capital he at once called on that
slow-witted diplomat and repeated his overtures. But Pitt had died; the
prospect of British financial assistance had ended;[820] and Burr sent
Dayton to the Spanish Minister with a weird tale[821] in order to induce
that diplomat to furnish money.

Almost at the same time the South American adventurer, Miranda, again
arrived in America, his zeal more fiery than ever, for the "liberation"
of Venezuela. He was welcomed by the Administration, and Secretary of
State Madison gave him a dinner. Jefferson himself invited the
revolutionist to dine at the Executive Mansion. Burr's hopes were
strengthened, since he intended doing in Mexico precisely what Miranda
was setting out to do in Venezuela.

In February, 1806, Miranda sailed from New York upon his Venezuelan
undertaking. His openly avowed purpose of forcibly expelling the Spanish
Government from that country had been explained to Jefferson and Madison
by the revolutionist personally. Before his departure, the Spanish
filibuster wrote to Madison, cautioning him to keep "in the deepest
secret" the "important matters" which he (Miranda) had laid before
him.[822] The object of his expedition was a matter of public notoriety.
In New York, in the full light of day, he had bought arms and provisions
and had enlisted men for his enterprise.

Excepting for Burr's failure to secure funds from the British
Government, events seemed propitious for the execution of his grand
design. He had written to Blennerhassett a polite and suggestive letter,
not inviting him, however, to engage in the adventure;[823] the eager
Irishman promptly responded, begging to be admitted as a partner in
Burr's enterprises, and pledging the services of himself and his
friends.[824] Burr, to his surprise, was cordially received by Jefferson
at the White House where he had a private conference of two hours with
the President.

The West openly demanded war with Spain; the whole country was aroused;
in the House, Randolph offered a resolution to declare hostilities;
everywhere the President was denounced for weakness and delay.[825] If
only Jefferson would act--if only the people's earnest desire for war
with Spain were granted--Burr could go forward. But the President would
make no hostile move--instead, he proposed to buy the Floridas. Burr,
lacking funds, thought for a moment of abandoning his plans against
Mexico, and actually asked Jefferson for a diplomatic appointment, which
was, of course, refused.[826]

The rumor had reached Spain that the Americans had actually begun war.
On the other hand, the report now came to Washington that the Spaniards
had invaded American soil. The Secretary of War ordered General
Wilkinson to drive the Spaniards back. The demand for war throughout the
country grew louder. If ever Burr's plan of Mexican conquest was to be
carried out, the moment had come to strike the blow. His confederate,
Wilkinson, in command of the American Army and in direct contact with
the Spaniards, had only to act.

The swirl of intrigue continued. Burr tried to get the support of men
disaffected toward the Administration. Among them were Commodore
Truxtun, Commodore Stephen Decatur, and "General"[827] William Eaton.
Truxtun and Decatur were writhing under that shameful treatment by which
each of these heroes had been separated, in effect removed, from the
Navy. Eaton was cursing the Administration for deserting him in his
African exploits, and even more for refusing to pay several thousand
dollars which he claimed to have expended in his Barbary
transactions.[828]

Truxtun and Burr were intimate friends, and the Commodore was fully told
of the design to invade Mexico in the event of war with Spain; should
that not come to pass, Burr advised Truxtun that he meant to settle
lands he had arranged to purchase beyond the Mississippi. He tried to
induce Truxtun to join him, suggesting that he would be put in command
of a naval force to capture Havana, Vera Cruz, and Cartagena. When Burr
"positively" informed him that the President was not a party to his
enterprise, Truxtun declined to associate himself with it. Not an
intimation did Burr give Truxtun of any purpose hostile to the United
States. The two agreed in their contemptuous opinion of Jefferson and
his Administration.[829] To Commodore Decatur, Burr talked in similar
fashion, using substantially the same language.

But to "General" Eaton, whom he had never before met, Burr unfolded
plans more far-reaching and bloody, according to the Barbary hero's
account of the revelations.[830] At first Burr had made to Eaton the
same statements he had detailed to Truxtun and Decatur, with the notable
difference that he had assured Eaton that the proposed expedition was
"under the authority of the general government." Notwithstanding his
familiarity with intrigue, the suddenly guileless Eaton agreed to lead a
division of the invading army under Wilkinson who, Burr assured him,
would be "Chief in Command."

But after a while Eaton's sleeping perception was aroused. Becoming as
sly as a detective, he resolved to "draw Burr out," and "listened with
seeming acquiescence" while the villain "unveiled himself" by
confidences which grew ever wilder and more irrational: Burr would
establish an empire in Mexico and divide the Union; he even "meditated
overthrowing the present Government"--if he could secure Truxtun,
Decatur, and others, he "_would turn Congress neck and heels out of
doors, assassinate the President, seize the treasury and Navy; and
declare himself the protector of an energetic government_."

Eaton at last was "shocked" and "dropped the mask," declaring that the
one word, "_Usurper_, would destroy" Burr. Thereupon Eaton went to
Jefferson and urged the President to appoint Burr American Minister to
some European government and thus get him out of the country, declaring
that "_if Burr were not in some way disposed of we should within
eighteen months have an insurrection if not a revolution on the waters
of the Mississippi_." The President was not perturbed--he had too much
confidence in the Western people, he said, "to admit an _apprehension_
of that kind." But of the horrid details of the murderous and
treasonable villain's plans, never a word said Eaton to Jefferson.[831]

However, the African hero did "detail the whole projects of Mr. Burr" to
certain members of Congress.[832] "They believed Col. Burr capable of
anything--and agreed that _the fellow ought to be hanged_"; but they
refused to be alarmed--Burr's schemes were "too chimerical and his
circumstances too desperate to ... merit of serious consideration."[833]
So for twelve long months Eaton said nothing more about Burr's proposed
deviltry. During this time he continued alternately to belabor Congress
and the Administration for the payment of the expenses of his Barbary
exploits.[834]

Andrew Jackson, while entertaining Burr on his first Western journey,
had become the most promising, in practical support, of all who avowed
themselves ready to follow Burr's invading standard into Mexico; and
with Jackson he had freely consulted about that adventure. From
Washington, Burr now wrote the Tennessee leader of the beclouding of
their mutually cherished prospects of war with Spain.

But hope of war was not dead, wrote Burr--indeed, Miranda's armed
expedition "composed of American citizens, and openly fitted out in an
American port," made it probable. Jackson ought to be attending to
something more than his militia offices, Burr admonished him: "Your
country is full of fine materials for an army, and I have often said a
brigade could be raised in West Tennessee which would drive double their
number of Frenchmen off the earth." From such men let Jackson make out
and send to Burr "a list of officers from colonel down to ensign for one
or two regiments, composed of fellows fit for business, and with whom
you would trust your life and your honor." Burr himself would, "in case
troops should be called for, recommend it to the Department of War"; he
had "reason to believe that on such an occasion" that department would
listen to his advice.[835]

At last Burr, oblivious to the danger that Eaton might disclose the
deadly secrets which he had so imprudently confided to a dissipated
stranger, resolved to act and set out on his fateful journey. Before
doing so, he sent two copies of a cipher letter to Wilkinson. This was
in answer to a letter which Burr had just received from Wilkinson, dated
May 13, 1806, the contents of which never have been revealed. Burr
chose, as the messenger to carry overland one of the copies, Samuel
Swartwout, a youth then twenty-two years of age, and brother of Colonel
John Swartwout whom Jefferson had removed from the office of United
States Marshal for the District of New York largely because of the
Colonel's lifelong friendship for Burr. The other copy was sent by sea
to New Orleans by Dr. Justus Erich Bollmann.[836]

No thought had Burr that Wilkinson, his ancient army friend and the arch
conspirator of the whole plot, would reveal his dispatch. He and
Wilkinson were united too deeply in the adventure for that to be
thinkable. Moreover, the imminence of war appeared to make it certain
that when the General received Burr's cipher, the two men would be
comrades in arms against Spain in a war which, it cannot be too often
repeated, it was believed Wilkinson could bring on at any moment.

Nevertheless, Burr and Dayton had misgivings that the timorous General
might not attack the Spaniards. They bolstered him up by hopeful
letters, appealing to his cupidity, his ambition, his vanity, his fear.
Dayton wrote that Jefferson was about to displace him and appoint
another head of the army; let Wilkinson, therefore, precipitate
hostilities--"You know the rest.... Are you ready? Are your numerous
associates ready? Wealth and glory! Louisiana and Mexico!"[837]

In his cipher dispatch to Wilkinson, Burr went to even greater lengths
and with reason, for the impatient General had written him another
letter, urging him to hurry: "I fancy Miranda has taken the bread out of
your mouth; and I shall be ready for the grand expedition before you
are."[838] Burr then assured Wilkinson that he was not only ready but on
his way, and tried to strengthen the resolution of the shifty General by
falsehood. He told of tremendous aid secured in far-off Washington and
New York, and intimated that England would help. He was coming
himself with money and men, and details were given. Bombastic
sentences--entirely unlike any language appearing in Burr's voluminous
correspondence and papers--were well chosen for their effect on
Wilkinson's vainglorious mind: "The gods invite us to glory and fortune;
it remains to be seen whether we deserve the boon.... Burr guarantees
the result with his life and honor, with the lives and honor and the
fortunes of hundreds, the best blood of our country."[839]

Fatal error! The sending of that dispatch was to give Wilkinson his
opportunity to save himself by assuming the disguise of patriotism and
of fealty to Jefferson, and, clad in these habiliments, to denounce his
associates in the Mexican adventure as traitors to America. Soon, very
soon, Wilkinson was to use Burr's letter in a fashion to bring his
friend and many honest men to the very edge of execution--a fate from
which only the fearlessness and penetrating mind of John Marshall was to
save them.

But this black future Burr could not foresee. Certain, as were most men,
that war with Spain could not be delayed much longer, and knowing that
Wilkinson could precipitate it at any moment, Burr's mind was at rest.
At the beginning of August, 1806, he once more journeyed down the Ohio.
On the way he stopped at a settlement on the Monongahela, not far from
Pittsburgh, where he visited one Colonel George Morgan. This man
afterward declared that Burr talked mysteriously--the Administration was
contemptible, two hundred men could drive the Government into the
Potomac, five hundred could take New York; and, Burr added laughingly,
even the Western States could be detached from the Union. Most of this
was said "in the presence of a considerable company."[840]

The elder Morgan, who was aged and garrulous,[841] pieced together his
inferences from Burr's meaning looks, jocular innuendoes, and mysterious
statements,[842] and detected a purpose to divide the Nation. Deeply
moved, he laid his deductions before the Chief Justice of Pennsylvania
and two other gentlemen from Pittsburgh, a town close at hand; and a
letter was written to Jefferson, advising him of the threatened
danger.[843]

From Pittsburgh, Burr for the second time landed on the island of Harman
Blennerhassett, who was eager for any adventure that would restore his
declining fortunes. If war with Spain should, after all, not come to
pass, Burr's other plan was the purchase of the enormous Bastrop land
grant on the Washita River. Blennerhassett avidly seized upon both
projects.[844] From that moment forward, the settlement of this rich and
extensive domain in the then untouched and almost unexplored West became
the alternative purpose of Aaron Burr in case the desire of his heart,
the seizure of Mexico, should fail.[845]

Unfortunately Blennerhassett who, as his friends declared, "had all
kinds of sense, except common sense,"[846] now wrote a series of letters
for an Ohio country newspaper in answer to the articles appearing in the
Kentucky organ of Daveiss and Humphrey Marshall, the _Western World_.
The Irish enthusiast tried to show that a separation of the Western
States from "Eastern domination" would be a good thing. These foolish
communications were merely repetitions of similar articles then
appearing in the Federalist press of New England, and of effusions
printed in Southern newspapers a few years before. Nobody, it seems,
paid much attention to these vagaries of Blennerhassett. It is possible
that Burr knew of them, but proof of this was never adduced. When the
explosion came, however, Blennerhassett's maunderings were recalled, and
they became another one of those evidences of Burr's guilt which, to the
public mind, were "confirmation strong as proofs of holy writ."

Burr and his newly made partner contracted for the building of fifteen
boats, to be delivered in four months; and pork, meal, and other
provisions were purchased. The island became the center of operations.
Soon a few young men from Pittsburgh joined the enterprise, some of them
sons of Revolutionary officers, and all of them of undoubted loyalty to
the Nation. To each of these one hundred acres of land on the Washita
were promised, as part of their compensation for participating in the
expedition, the entire purpose of which was not then explained to
them.[847]

Burr again visited Marietta, where the local militia were assembled for
their annual drill, and put these rural soldiers through their
evolutions, again fascinating the whole community.[848] At Cincinnati,
Burr held another long conference with his partner, Senator John Smith,
who was a contractor and general storekeeper. The place which the
Washita land speculation had already come to hold in his mind is shown
by the conversation--Burr talked as much of that project as he did of
war with Spain and his great ambition to invade Mexico;[849] but of
secession, not a syllable.

Next Burr hurried to Nashville and once more became the honored guest of
Andrew Jackson, whom he frankly told of the modification of his plans.
His immediate purpose, Burr said, now was to settle the Washita lands.
Of course, if war should break out he would lead a force into Texas and
Mexico. Burr kept back only the part Wilkinson was to play in
precipitating hostilities; and he said nothing of his efforts to bolster
up that frail warrior's resolution.[850]

In Tennessee and Kentucky the talk was again of war with Spain. Indeed,
it was now the only talk.[851] For the third time in the Tennessee
Capital a public banquet was given to the hero by whom the people
expected to be led against the enemy. Soon afterward Jackson issued his
proclamation to the Tennessee militia calling them to arms against the
hated Spaniards, and volunteered his services to the National
Government. Jefferson answered in a letter provoking in its
vagueness.[852]

At Lexington, Kentucky, Burr and Blennerhassett now purchased from
Colonel Charles Lynch, the owner of the Bastrop grant, several hundred
thousand acres on the Washita River in Northern Louisiana.[853]

To many to whom Burr had spoken of his scheme to invade Mexico he gave
the impression that his designs had the approval of the Administration;
to some he actually stated this to be the fact. In case war was
declared, the Administration, of course, would necessarily support
Burr's attack upon the enemy; if hostilities did not occur, the
"Government might overlook the preparations as in the case of
Miranda."[854] It is hard to determine whether the project to invade
Mexico--of which Burr did not inform them, but which they knew to be his
purpose--or the plan to settle the Washita lands, was the more
attractive to the young men who wished to join him. Certainly, the
Bastrop grant was so placed as to afford every possible lure to the
youthful, enterprising, and adventurous.[855]

At this moment Wilkinson, apparently recovered from the panic into which
Clark's letter had thrown him a year before, seemed resolved at last to
strike. He even wrote with enthusiasm to General John Adair: "The time
long looked for by many & wished for by more has now arrived, for
subverting the Spanish government in Mexico--be ready & join me; we will
want little more than light armed troops.... More will be done by
marching than by fighting.... We cannot fail of success.[856] Your
military talents are requisite. Unless you fear to join a Spanish
intriguer [Wilkinson] come immediately--without your aid I can do
nothing."[857] In reply Adair wrote Wilkinson that "the United States
had not declared war against Spain and he did not believe they would."
If not, Adair would not violate the law by joining Wilkinson's projected
attack on Spain.[858]

By the same post Wilkinson wrote to Senator John Smith a letter
bristling with italics: "I shall assuredly push them [the Spaniards]
over the Sabine ... as that you are alive.... _You must speedily send me
a force_ to support our pretensions ... _5000 mounted infantry ... may
suffice to carry us forward as far as Grand River_ [the Rio Grande],
_there we shall require 5000 more to conduct us to Mount el Rey ...
after which from 20_ to _30,000 will be necessary to carry our conquests
to California_ and the _Isthmus of Darien. I write in haste, freely_ and
_confidentially_, being ever your friend."[859]

In Kentucky once more the rumors sprang up that Burr meant to dismember
the Union, and these were now put forward as definite charges. For
months Joseph Hamilton Daveiss, a brother-in-law of John
Marshall--appointed at the latter's instance by President Adams as
United States Attorney for the District of Kentucky[860]--had been
writing Jefferson exciting letters about some kind of conspiracy in
which he was sure Burr was engaged. The President considered lightly
these tales written him by one of his bitterest enemies.

With the idea of embarrassing the Republican President, by connecting
him, through the Administration's seeming acquiescence in Burr's
projects as in the case of the Miranda expedition, Daveiss and his
relative, former Senator Humphrey Marshall--both leaders of the few
Federalists now remaining in Kentucky--welded together the rumors of
Burr's Mexican designs and those of his treasonable plot to separate the
Western States from the Union. These they published in a newspaper which
they controlled at Frankfort.[861]

The moss was removed from the ancient Spanish intrigues; Wilkinson was
truthfully denounced as a pensioner of Spain; but the plot, it was
charged, had veered from a union of the West with the Spanish dominions,
to the establishment, by force of arms, of an independent
trans-Alleghany Government.[862] The Federalist organs in the East
adopted the stories related in the _Western World_, and laid especial
emphasis on the disloyalty of the Western States, particularly of
Kentucky.

The rumors had so aroused the people living near Blennerhassett's island
that Mrs. Blennerhassett sent a messenger to warn Burr that he could
not, in safety, appear there again. Learning this from the bearer of
these tidings, Burr's partner, Senator John Smith, demanded of his
associate an explanation. Burr promptly answered that he was "greatly
surprised and really hurt" by Smith's letter. "If," said Burr, "there
exists any design to separate the Western from the Eastern States, I am
totally ignorant of it. I never harbored or expressed any such intention
to any one, nor did any person ever intimate such design to me."[863]

Daveiss and Humphrey Marshall now resolved to stay the progress of the
plot at which they were convinced that the Republican Administration was
winking. If Jefferson was complacent, Daveiss would act and act
officially; thus the President, by contrast, would be fatally
embarrassed. Another motive, personal in its nature, inspired Daveiss.
He was an able, fearless, passionate man, and he hated Burr violently
for having killed Hamilton whom Daveiss had all but worshiped.[864]

Early in November the District Attorney moved the United States Court at
Frankfort to issue compulsory process for Burr's apprehension and for
the attendance of witnesses. Burr heard of this at Lexington and sent
word that he would appear voluntarily. This he did, and, the court
having denied Daveiss's motion because of the irregularity of it, the
accused demanded that a public and official investigation be made of his
plans and activities. Accordingly, the grand jury was summoned and
Daveiss given time to secure witnesses.

On the day appointed Burr was in court. By his side was his attorney, a
tall, slender, sandy-haired young man of twenty-nine who had just been
appointed to the National Senate. Thus Henry Clay entered the drama.
Daveiss failed to produce a single witness, and Burr, "after a dignified
and grave harangue," was discharged, to the tumultuous delight of the
people.[865]

Two weeks later the discomfited but persistent and undaunted District
Attorney again demanded of Judge Innes the apprehension of the
"traitor." Clay requested of Burr a written denial of the charges so
incessantly made against him. This Burr promptly furnished.[866] Clay
was so convinced of Burr's integrity that he declared in court that he
"could pledge his own honor and innocence" for those of his client.
Once more no witnesses were produced; once more the grand jury could not
return an indictment; once more Burr was discharged. The crowd that
packed the court-room burst into cheers.[867] That night a ball, given
in Burr's honor, crowned this second of his triumphs in the United
States Court.[868]

Thereafter Burr continued his preparations as if nothing had happened.
To all he calmly stated the propriety of his enterprise. To his fellow
adventurer, Senator John Smith, he was again particularly explicit and
clear: "If there should be a war between the United States and Spain, I
shall head a corps of volunteers and be the first to march into the
Mexican provinces. If peace should be proffered, which I do not expect,
I shall settle my Washita lands, and make society as pleasant as
possible.... I have been persecuted, shamefully persecuted."[869] As to
dividing the Union, Burr told Smith that "if Bonaparte with all his army
were in the western country with the object ... he would never see salt
water again."[870]

While Burr was writing this letter, Jefferson was signing a document
that, when sent forth, as it immediately was, ignited all the rumors,
reports, accusations, and suspicions that had been accumulating, and
set the country on fire with wrath against the disturber of our national
bliss.

When Wilkinson received Burr's cipher dispatch, he took time to consider
the best methods for saving himself, filling his purse, and brightening
his tarnished reputation.[871] The faithful and unsuspecting young
Swartwout, Burr's messenger, was persuaded to remain in Wilkinson's camp
for a week after the delivery of the fatal letter. He was treated with
marked friendliness, and from him the General afterward pretended to
have extracted frightful details of Burr's undertaking.[872]

Seven more days passed, and at last, two weeks after he had received
Burr's cipher dispatch, Wilkinson wrote Jefferson that "a Numerous and
powerful Association, extending from New York to ... the Mississippi had
been formed to levy & rendezvous eight or Ten Thousand Men in New
Orleans ... & from thence ... to carry an Expedition against Vera Cruz."
Wilkinson gave details--dates and places of assembling troops, methods
of invasion, etc., and added: "It is unknown under what Authority this
Enterprize has been projected, from where the means of its support are
derived, or what may be the intentions of its leaders in relation to the
Territory of Orleans."[873]

Surprising as this was, the General supported it by a "confidential" and
personal letter to Jefferson[874] still more mysterious and disquieting:
"The magnitude of the Enterprize, the desperation of the Place, and the
stupendous consequences with which it seems pregnant, stagger my belief
& excite doubts of the reality, against the conviction of my Senses; &
it is for this reason I shall forbear to commit Names.... I have never
in my whole Life found myself in such circumstances of perplexity and
Embarrassment as at present; for I am not only uninformed of the prime
mover and Ultimate Objects of this daring Enterprize, but am ignorant of
the foundation on which it rests."

Wilkinson went on to say that, as an inducement for him to take part in
it, he had been told that "you [Jefferson] connive at the combination
and that our country will justify it." If this were not true, "then I
have no doubt the revolt of this Territory will be made an auxiliary
step to the main design of attacking Mexico." So he thought he ought to
compromise with the Spaniards and throw himself with his "little Band
into New Orleans, to be ready to defend that Capitol against Usurpation
and violence."

He wrote more to the same effect, and added this postscript: "Should
Spain be disposed to War seriously with us, might not some plan be
adopted to correct the delirium of the associates, and by a pitiable
appeal to their patriotism to engage them in the service of their
Country. I merely offer the suggestion as a possible expedient to
prevent the Horrors of a civil contest, and I do believe that, with
competent authority I could accomplish the object."[875]

This was the letter which a few months later caused Chief Justice John
Marshall to issue a subpoena _duces tecum_ directed to President
Thomas Jefferson in order to have it produced in court.[876]

Jefferson had known of the rumors about Burr--George Morgan, Joseph H.
Daveiss, and William Eaton had put him on the track of the "traitor."
Others had told of the American Catiline's treasonable plans; and the
newspapers, of which he was a studious reader, had advised the President
of every sensation that had appeared. Jefferson and his Cabinet had
nervously debated the situation, decided on plans to forestall the
conspiracy, and then hurriedly abandoned them;[877] evidently they had
no faith in the lurid stories of Burr's treasonable purposes and
preparations.

Letters to Jefferson from the West, arriving October 24, 1806, bore out
the disbelief of the President and his Cabinet in Burr's lawless
activities; for these advices from the President's friends who, on the
ground, were closely watching Burr, contained "not one word ... of any
movements by Colonel Burr. This total silence of the officers of the
Government, of the members of Congress, of the newspapers, proves he is
committing no overt act against law," Jefferson wrote in his Cabinet
Memorandum.[878] So the President and his Cabinet decided to do nothing
further at that time than to order John Graham, while on his way to
assume the office of Secretary of the Orleans Territory, to investigate
Burr's activities.

But when the mysterious warnings from Wilkinson reached Jefferson, he
again called his Cabinet into consultation and precipitate action was
taken. Orders were dispatched to military commanders to take measures
against Burr's expedition; Wilkinson was directed to withdraw his troops
confronting the Spaniards and dispose of them for the defense of New
Orleans and other endangered points.

Most important of all, a Presidential Proclamation was issued to all
officials and citizens, declaring that a conspiracy had been discovered,
warning all persons engaged in it to withdraw, and directing the
ferreting out and seizure of the conspirators' "vessels, arms and
military stores."[879] Graham preceded the Proclamation and induced
Governor Tiffin and the Ohio Legislature to take action for the seizure
of Burr's boats and supplies at Marietta; and this was done.

On December 10, 1806, Comfort Tyler of Onondaga County, New York, one of
the minor leaders of the Burr expedition,[880] arrived at
Blennerhassett's island with a few boats and some twenty young men who
had joined the adventure. There were a half-dozen rifles among them,
and a few fowling pieces. With these the youths went hunting in the Ohio
forests. Blennerhassett, too, had his pistols. This was the whole of the
warlike equipment of that militant throng--all that constituted that
"overt act of treason by levying war against the United States" which
soon brought Burr within the shadow of the gallows.

Jefferson's Proclamation had now reached Western Virginia, and it so
kindled the patriotism of the militia of Wood County, within the
boundaries of which the island lay, that that heroic host resolved to
descend in its armed might upon the embattled "traitors," capture and
deliver them to the vengeance of the law. The Wood County men, unlike
those of Ohio, needed no act of legislature to set their loyalty in
motion. The Presidential Proclamation, and the sight of the enemies of
the Nation gathered in such threatening and formidable array on
Blennerhassett's island, were more than enough to cause them to spring
to arms in behalf of their imperiled country.

Badly frightened, Blennerhassett and Tyler, leaving Mrs. Blennerhassett
behind, fled down the river with thirty men in six half-equipped boats.
They passed the sentries of the Wood County militia only because those
ministers of vigilance had got thoroughly drunk and were sound asleep.
Next day, however, the militia invaded the deserted island and, finding
the generously stocked wine cellar, restored their strength by drinking
all the wine and whiskey on the place. They then demonstrated their
abhorrence of treason by breaking the windows, demolishing the
furniture, tearing the pictures, trampling the flower-beds, burning the
fences, and insulting Mrs. Blennerhassett.[881]

Graham procured the authorities of Kentucky to take action similar to
that adopted in Ohio. Burr, still ignorant of Jefferson's Proclamation,
proceeded to Nashville, there to embark in the boats Jackson was
building for him, to go on the last river voyage of his adventure.

Jackson, like Smith and Clay, had been made uneasy by the rumors of
Burr's treasonable designs. He had written Governor Claiborne at New
Orleans a letter of warning, particularly against Wilkinson, and not
mentioning Burr by name.[882] When Burr arrived at the Tennessee
Capital, Jackson, his manner now cold, demanded an explanation. Burr,
"with his usual dignified courtesy, instantly complied."[883] It would
seem that Jackson was satisfied by his reassurance, in spite of the
President's Proclamation which reached Nashville three days before
Burr's departure;[884] for not only did Jackson permit him to proceed,
but, when the adventurer started down the Cumberland in two of the six
boats which he had built on Burr's previous orders, consented that a
nephew of his wife should make one of the ten or fifteen young men who
accompanied the expedition. He even gave the boy a letter of
introduction to Governor Claiborne at New Orleans.[885]

After the people had recovered from the shock of astonishment that
Jefferson's Proclamation gave them, the change in them was instantaneous
and extreme.[886] The President, to be sure, had not mentioned Burr's
name or so much as hinted at treason; all that Jefferson charged was a
conspiracy to attack the hated Spaniards, and this was the hope and
desire of every Westerner. Nevertheless, the public intelligence
penetrated what it believed to be the terrible meaning behind the
President's cautious words; the atrocious purpose to dismember the
Union, reports of which had pursued Burr since a Spanish agent had first
set the rumor afoot a year before, was established in the minds of the
people.

Surely the President would not hunt down an American seeking to
overthrow Spanish power in North America, when a Spanish "liberator" had
been permitted to fit out in the United States an expedition to do the
same thing in South America. Surely Jefferson would not visit his wrath
on one whose only crime was the gathering of men to strike at Spain with
which power, up to that very moment, everybody supposed war to be
impending and, indeed, almost begun. This was unthinkable. Burr must be
guilty of a greater crime--the greatest of crimes. In such fashion was
public opinion made ready to demand the execution of the "traitor" who
had so outrageously deceived the people; and that popular outcry began
for the blood of Aaron Burr by which John Marshall was assailed while
presiding over the court to which the accused was finally taken.

From the moment that Wilkinson decided to denounce Burr to the
President, his language became that of a Bombastes Furioso, his actions
those of a military ruffian, his secret movements matched the cunning of
a bribe-taking criminal. By swiftest dispatch another message was sent
to Jefferson. "My doubts have ceased," wrote Wilkinson, concerning "this
deep, dark, wicked, and wide-spread conspiracy, embracing the young and
the old, the democrat and the federalist, the native and the foreigner,
the patriot of '76 and the exotic of yesterday, the opulent and the
needy, the ins and the outs."

Wilkinson assured Jefferson, however, that he would meet the awful
emergency with "indefatigable industry, incessant vigilance and hardy
courage"; indeed, declared he, "I shall glory to give my life" to defeat
the devilish plot. But the numbers of the desperadoes were so great
that, unless Jefferson heavily reinforced him with men and ships, he and
the American army under his command would probably perish.[887]

As the horse bearing the messenger to Jefferson disappeared in the
forests, another, upon which rode a very different agent, left
Wilkinson's camp and galloped toward the Southwest. The latter agent was
Walter Burling, a corrupt factotum of Wilkinson's, whom that martial
patriot sent to the Spanish Viceroy at Mexico City to advise him of
Wilkinson's latest service to Spain in thwarting Burr's attack upon the
royal possessions, and in averting war between the United States and His
Catholic Majesty. For these noble performances Wilkinson demanded of the
Spanish Viceroy more than one hundred and ten thousand dollars in cash,
together with other sums which "he [had] been obliged to spend in order
to sustain the cause of good government, order and humanity."[888]

Wilkinson had asked the Viceroy to destroy the letter and this was
accordingly done in Burling's presence. The Royal representative then
told Burling that he knew all about Burr's plans to invade Mexico, and
had long been ready to repel a much larger force than Wilkinson stated
Burr to be leading. "I thanked him for his martial zeal and insinuated
that I wished him happiness in the pursuit of his righteous intentions,"
wrote the disgusted and sarcastic Viceroy in his report to the
Government at Madrid.[889] With this Wilkinson had to be content, for
the Viceroy refused to pay him a peso.

Upon Burling's return, the vigilant American Commander-in-Chief
forwarded to Jefferson a report of conditions in Mexico, as represented
by Burling, together with a request for fifteen hundred dollars to pay
that investigator's expenses.[890] The sole object of Burling's journey
was, Wilkinson informed the President, to observe and report upon the
situation in the great Spanish Vice-royalty as recent events had
affected it, with respect to the interests of the United States; and
Jefferson was assured by the General that his agent was the soundest and
most devoted of patriots.[891]

To back up the character he was now playing, Wilkinson showered warnings
upon the officers of the Army and upon government officials in New
Orleans. "The plot thickens.... My God! what a situation has our country
reached. Let us save it if we can.... On the 15th of this month
[November], Burr's declaration is to be made in Tennessee and Kentucky;
hurry, hurry after me, and, if necessary, let us be buried together, in
the ruins of the place we shall defend." This was a typical message to
Colonel Cushing.[892]

Wilkinson dispatched orders to Colonel Freeman at New Orleans to repair
the defenses of the city; but "be you as silent as the grave.... You
are surrounded by secret agents."[893] He informed Governor Claiborne
that "the storm will probably burst in New Orleans, where I shall meet
it and triumph or perish."[894] Otherwise "the fair fabric of our
independence ... will be prostrated, and the Goddess of Liberty will
take her flight from the globe forever." Again and again, Wilkinson
sounded the alarm. "Burr with rebellious bands may soon be at hand."
Therefore, "civil institutions must ... yield to the strong arm of
military law."[895] But Claiborne must "not breathe or even hint" that
catastrophe was approaching.

At last, however, Wilkinson unbosomed himself to the merchants of New
Orleans whom he assembled for that purpose. Agents of the bandit chief
were all around them, he said--he would have arrested them long since
had he possessed the power. The desperadoes were in larger force than he
had at first believed--"by all advices the enemy, at least 2000 strong,"
would soon reach Natchez. They meant, first, to sack New Orleans and
then to attack Mexico by land and sea. If successful in that invasion,
"the Western States were then to be separated from the Union." But
Wilkinson would "pledge his life in the defense of the city and his
country."[896]

At that moment Burr had not even started down the Mississippi with his
nine boats manned by sixty young men.

For a time the city was thrown into a panic.[897] But Wilkinson had
overblustered. The people, recovered from their fright, began to laugh.
Thousands of fierce Vandals, brandishing their arms, on their way to
take New Orleans, capture Mexico, destroy the Union! And this mighty
force not now far away! How could that be and no tidings of it except
from Wilkinson? That hero witnessed with dismay this turn of public
sentiment. Ruthless action, then, or all his complicated performances
would go for naught. Ridicule would be fatal to his plans.

So General James Wilkinson, as head of the Army of the United States,
began a reign of lawless violence that has no parallel in American
history. To such base uses can authority be put--with such peril to life
and liberty is it invested--when unchecked by Constitutional limitation
enforced by fearless and unprejudiced judges! Men were arrested and
thrown into prison on Wilkinson's orders, wholly without warrant of law.
The first thus to be seized were Samuel Swartwout and Dr. Justus Erich
Bollmann. Their papers were confiscated; they were refused counsel, were
even denied access to the courts. Soldiers carried them to a warship in
the river which at once set sail with orders from Wilkinson for the
delivery of the prisoners to the President at Washington.[898]

Another man similarly arrested was Peter V. Ogden of New York, nephew of
Jonathan Dayton, who had been the companion of Swartwout in his long
overland journey in quest of Wilkinson. Public-spirited lawyers swore
out writs of habeas corpus for these three men. Not a syllable of
evidence was adduced against Ogden, who by some mischance had not been
transported with Bollmann and Swartwout, and the court discharged him.

In response to the order of the court to produce the bodies of Bollmann
and Swartwout, Wilkinson sent his aide with the General's return to the
process. As the "Commander of the Army of the United States," he said,
he took on himself "all responsibility ... resulting from the arrest of
Erick Bollmann, who is accused of being guilty of the crime of treason
against the government and the laws of the United States," and he had
"taken opportune measures to warrant his safe delivery into the hands of
the President."

This had been done, avowed Wilkinson, solely in order "to secure the
nation which is menaced to its foundations by a band of traitors
associated with Aaron Burr." To that end he would, he defiantly informed
the court, "arrest, without respect to class or station, all those
against whom [he had] positive proof of being accomplices in the
machinations against the state."[899] This defiance of the courts was
accompanied by a copy of Wilkinson's version of Burr's cipher letter and
some memoranda by Bollmann, together with Wilkinson's assertion that he
had certain evidence which he would not, at that time, disclose.

Jefferson had long demanded of Wilkinson a copy of the incriminating
Burr letter, and this was now forwarded, together with the General's
account of the arrest of Bollmann, Swartwout, and Ogden. In his report
to the President, Wilkinson accused the judge who had released Ogden of
being an associate of Burr in his "treasonable combinations," and
characteristically added that he would "look to our country for
protection" in case suit for damages was brought against him by Bollmann
and Swartwout.[900]

While Bollmann and Swartwout, in close confinement on the warship, were
tossing on the winter seas, the saturnalia of defiance of the law
continued in New Orleans. Ogden was again seized and incarcerated. So
was his friend, James Alexander of New York, who had displeased
Wilkinson by suing out the writs of habeas corpus. Both were shortly
taken to a military prison. Judges, leading lawyers, prominent
citizens--all protested in vain. New writs of habeas corpus were issued
and ignored. Edward Livingston sued out a writ of attachment[901]
against Wilkinson. It was defied. The civil governor was appealed to; he
was cowed and declined to act in this "delicate as well as dangerous"
state of things. In despair and disgust Judge James Workman adjourned
the Orleans County Court _sine die_ and resigned from the Bench;[902] he
too was seized by Wilkinson's soldiers, and recovered his liberty only
by the return of the Judge of the United States District Court, who
dared the wrath of the military tyrant in order to release his
imprisoned fellow judge.[903]

In the midst of this debauch of military lawlessness, General John
Adair, late one afternoon, rode into New Orleans. He had come on
business, having sent three thousand gallons of whiskey and two
boatloads of provisions to be sold in the city, and expecting also to
collect a debt of fifteen hundred dollars due him at that place; he had
also intended to make some land deals.

The moment Wilkinson heard of the arrival of his old friend and comrade,
the General ordered "a captain and one hundred soldiers" to seize Adair.
This was done so peremptorily that he was not allowed to dine, "altho
the provision was ready on the table"; he was denied medicine, which on
account of illness he wished to take with him; he was refused extra
clothing and was not even allowed "to give directions respecting his
horses which cost him $700 in Kentucky." Then the bewildered Adair was
hurried on board a schooner and taken "down the river 25 miles, landed
on the other side ... and placed under a tent in a swamp."

After he had been kept six days under guard in this situation, Adair
"was shipped aboard the schooner Thatcher for Baltimore ... in the
custody of Lt. Luckett." Wilkinson ordered the lieutenant to keep Adair
in close confinement and to resist "with force and arms" any civil
officer who might attempt to take Adair "by a writ of habeas
corpus."[904]

The reason for this particular atrocity was that Wilkinson had written
Adair the letters quoted above, and unless his correspondent were
discredited and disgraced, he could convict Wilkinson of the very
conspiracy with which Burr was being charged.[905] During his reign of
terror to put down "treason," the General was in secret communication
with the Spaniards, earning the bribe money which he was, and long had
been, receiving from them.[906]

While Wilkinson at New Orleans was thus openly playing despot and
secretly serving Spain, the President's Annual Message was read to
Congress.

In this document Jefferson informed the National Legislature of the
advance of the Spaniards toward American territory, the alarming posture
of affairs, the quick response of the pioneers to the call of the
Government for volunteers. "Having received information," he said,
"that, in another part of the United States, a great number of private
individuals were combining together, arming and organizing themselves
contrary to law, to carry on a military expedition against the
territories of Spain [he] thought it necessary to take measures ... for
suppressing this enterprise ... and bringing to justice its authors and
abettors."[907] Such was the slight reference made to the Burr
"conspiracy." Thanks to the President's Proclamation, the "treasonable"
plot of Aaron Burr was already on every tongue; but here, indeed, was an
anti-climax.

The Senate referred the brief paragraph of the President's Message
relating to the conspiracy to a special committee. The committee took no
action. Everybody was in suspense. What were the facts? Nobody knew. But
the air was thick with surmise, rumor, conjecture, and strange
fancies--none of them bearing the color of truth.[908] Marshall was
then in Washington and must have heard all these tales which were on
every tongue.

In two weeks from the time Jefferson's Message was read to Congress,
John Randolph rose in his place in the House, and in a speech of sharp
criticism both of Spain and of the President, demanded that the
President lay before Congress any information in his possession
concerning the conspiracy and the measures taken to suppress it.[909]

A heated debate followed. Jefferson's personal supporters opposed the
resolution. It was, however, generally agreed, as stated by George W.
Campbell of Tennessee, that "this conspiracy has been painted in
stronger colors than there is reason to think it deserves." There was no
real evidence, said Campbell; nothing but "newspaper evidence."[910]
Finally that part of the resolution calling for the facts as to the
conspiracy was passed by a vote of 109 yeas to 14 nays; while the clause
demanding information as to the measures Jefferson had taken was carried
by 67 yeas to 52 nays.[911]

A week later the President responded in a Special Message. His
information as to the conspiracy was, he said, a "voluminous mass," but
there was in it "little to constitute legal evidence." It was "chiefly
in the form of letters, often containing such a mixture of rumors,
conjectures, and suspicions, as renders it difficult to sift out the
real facts." On November 25, said Jefferson, he had received Wilkinson's
letter exposing Burr's evil designs which the General, "with the honor
of a soldier and fidelity of a good citizen," had sent him, and which,
"when brought together" with some other information, "developed Burr's
general designs."[912]

The President assured Congress that "one of these was the severance of
the Union of these States beyond the Alleghany mountains; the other, an
attack on Mexico. A third object was provided ... the settlement of a
pretended purchase of a tract of country on the Washita." But "this was
merely a pretext." Burr had soon found that the Western settlers were
not to be seduced into secession; and thereupon, said Jefferson, the
desperado "determined to seize upon New Orleans, plunder the bank there,
possess himself of the military and naval stores, and proceed on his
expedition to Mexico." For this purpose Burr had "collected ... all the
ardent, restless, desperate, and disaffected persons" within his reach.

Therefore the President made his Proclamation of November 27, which had
thwarted Burr's purposes. In New Orleans, however, General Wilkinson had
been forced to take extreme measures for the defense of the country
against the oncoming plunderers. Among these was the seizure of Bollmann
and Swartwout who were "particularly employed in the endeavor to corrupt
the General and the Army of the United States," and who had been sent
oversea by Wilkinson for "ports in the Atlantic states, probably on the
consideration that an impartial trial could not be expected ... in New
Orleans, and that the city was not as yet a safe place of
confinement."[913]

As to Burr, Jefferson assured Congress that his "_guilt is placed beyond
question_."[914]

With this amazing Message the President sent an affidavit of
Wilkinson's, as well as two letters from that veracious officer,[915]
and a copy of Wilkinson's version of Burr's letter to him from which the
General had carefully omitted the fact that the imprudent message was in
answer to a dispatch from himself. But Jefferson did not transmit to
Congress the letter, dated October 21, 1806, which he had received from
Wilkinson.

Thoughtful men, who had personally studied Burr for years and who were
unfriendly to him, doubted the accuracy of Wilkinson's version of the
Burr dispatch: "It sounds more like Wilkinson's letter than Burr's,"
Senator Plumer records in his diary. "There are ... some things in it
quite irrelevant.... Burr's habits have been never to trust himself on
paper, if he could avoid it--when he wrote, it was with great
caution.... Wilkinson is not an accurate correct man."[916]

No such doubts, however, assailed the eager multitude. The awful charge
of treason had now been formally made against Burr by the President of
the United States. This, the most sensational part of Jefferson's
Message, at once caught and held the attention of the public, which took
for granted the truth of it. From that moment the popular mind was made
up, and the popular voice demanded the life of Aaron Burr. No mere trial
in court, no adherence to rules of evidence, no such insignificant fact
as the American Constitution, must be permitted to stand between the
people's aroused loyalty and the miscreant whom the Chief Executive of
the Nation had pronounced guilty of treason.


FOOTNOTES:

[752] "We were all deeply affected, and many shed tears." (Plumer to his
wife, March 2, 1805, Plumer, 331; and see _Memoirs, J. Q. A._: Adams, I,
367.)

"Tears did flow abundantly." (Burr to his daughter, March 13, 1805,
Davis, II, 360.)

[753] "There was nothing written or prepared.... It was the solemnity,
the anxiety, the expectation, and the interest which I saw strongly
painted in the countenances of the auditors, that inspired whatever was
said." (_Ib._ 360.)

[754] The speech, records the _Washington Federalist_, which had been
extremely abusive of Burr, "was said to be the most dignified, sublime
and impressive that ever was uttered."

"His address ... was delivered with great force and propriety." (Plumer
to his wife, March 2, 1805, Plumer, 331.)

"His speech ... was delivered with great dignity.... It was listened to
with the most earnest and universal attention." (_Memoirs, J. Q. A._:
Adams, I, 367.) Burr made a profound impression on John Quincy Adams.
"There was not a member present but felt the force of this solemn appeal
to his sense of duty." (J. Q. Adams to his father, March 14, 1805,
_Writings, J. Q. A._: Ford, III, 119.)

The franking privilege was given Burr for life, a courtesy never before
extended except to a President of the United States and Mrs. Washington.
(See Hillhouse's speech, _Annals_, 10th Cong. 1st Sess. 272.)

[755] His father was the President of Princeton. His maternal
grandfather was Jonathan Edwards.

[756] Hamilton's pursuit of Burr was lifelong and increasingly venomous.
It seems incredible that a man so transcendently great as
Hamilton--easily the foremost creative mind in American
statesmanship--should have succumbed to personal animosities such as he
displayed toward John Adams, and toward Aaron Burr.

The rivalry of Hamilton and Burr began as young attorneys at the New
York bar, where Burr was the only lawyer considered the equal of
Hamilton. Hamilton's open hostility, however, first showed itself when
Burr, then but thirty-five years of age, defeated Hamilton's
father-in-law, Philip Schuyler, for the United States Senate. The very
next year Hamilton prevented Burr from being nominated and elected
Governor of New York. Then Burr was seriously considered for
Vice-President, but Hamilton also thwarted this project.

When Burr was in the Senate, the anti-Federalists in Congress
unanimously recommended him for the French Mission; and Madison and
Monroe, on behalf of their colleagues, twice formally urged Burr's
appointment. Hamilton used his influence against it, and the appointment
was not made. At the expiration of Burr's term in the Senate, Hamilton
saw to it that he should not be chosen again and Hamilton's
father-in-law this time succeeded.

President Adams, in 1798, earnestly desired to appoint Burr to the
office of Brigadier-General under Washington in the provisional army
raised for the expected war with France. Hamilton objected so
strenuously that the President was forced to give up his design. (See
Adams to Rush, Aug. 25, 1805, _Old Family Letters_, 77; and same to
same, June 23, 1807, _ib._ 150.)

In the Presidential contest in the House in 1801 (see vol. II, 533-38,
of this work), Burr, notwithstanding his refusal to do anything in his
own behalf (_ib._ 539-47), would probably have been elected instead of
Jefferson, had not Hamilton savagely opposed him. (_Ib._)

When, in 1804, Burr ran for Governor of New York, Hamilton again
attacked him. It was for one of Hamilton's assaults upon him during this
campaign that Burr challenged him. (See Parton: _Life and Times of Aaron
Burr_, 339 _et seq._; also Adams: _U.S._ II, 185 _et seq._; and _Private
Journal of Aaron Burr_, reprinted from manuscript in the library of W.
K. Bixby, Introduction, iv-vi.) So prevalent was dueling that, but for
Hamilton's incalculable services in founding the Nation and the lack of
similar constructive work by Burr, the hatred of Burr's political
enemies and the fatal result of the duel, there certainly would have
been no greater outcry over the encounter than over any of the similar
meetings between public men during that period.

[757] Dueling continued for more than half a century. Many of the most
eminent of Americans, such as Clay, Randolph, Jackson, and Benton,
fought on "the field of honor." In 1820 a resolution against dueling,
offered in the Senate by Senator Morrill of New Hampshire, was laid on
the table. (_Annals_, 16th Cong. 1st Sess. 630, 636.)

[758] McCaleb: _Aaron Burr Conspiracy_, 19; Parton: _Burr_, 382.

[759] Vol. II, 545, of this work.

[760] Adams: _U.S._ I, 331.

[761] "His official conduct in the Senate ... has fully met my
approbation," testifies the super-critical Plumer in a letter to his
wife March 2, 1805. (Plumer, 331.)

[762] "Burr is completely an insulated man." (Sedgwick to King, Feb. 20,
1802, King, IV, 74.)

"Burr has lost ground very much with Jefferson's sect during the present
session of Congress.... He has been not a little abused ... in the
democratic prints." (Troup to King, April 9, 1802, King, IV, 103.)

Also see _supra_, chap. II; Adams: _U.S._ I, 280; and Parton: _Burr_,
309.

[763] Adams: _U.S._ I, 230-33; Channing: _Jeff. System_, 17-19.

[764] "Burr is a gone man; ... Jefferson is really in the dust in point
of character, but notwithstanding this, he is looked up to ... as the
Gog and Magog of his party." (Troup to King, Dec. 12, 1802, King, IV,
192-93.) See also Adams: _U.S._ I, 282.

[765] Channing: _Jeff. System_, 18-19.

[766] Adams: _U.S._ I, 332.

[767] Adams: _U.S._ II, 185.

"He was accused of this and that, through all of which he maintained a
resolute silence. It was a characteristic of his never to refute charges
against his name.... It is not shown that Burr ever lamented or grieved
over the course of things, however severely and painfully it pressed
upon him." (McCaleb, 19.) See also Parton: _Burr_, 336.

[768] "Burr ... is acting a little and skulking part. Although Jefferson
hates him as much as one demagogue can possibly hate another who is
aiming to rival him, yet Burr does not come forward in an open and manly
way agt. him.... Burr is ruined in politics as well as in fortune."
(Troup to King, Aug. 24, 1802, King, IV, 160.)

[769] Davis, II, 89 _et seq._; Adams: _U.S._ I, 332-33; McCaleb, 20;
Parton: _Burr_, 327 _et seq._

[770] See _supra_, 150-52, and vol. IV, chap. I, of this work.

[771] Plumer, 295.

[772] It appears that some of the New England Federalists urged upon the
British Minister the rejection of the articles of the Boundary Treaty in
retaliation for the Senate's striking out one article of that
Convention. They did this, records the British Minister, because, as
they urged, such action by the British Government "would prove to be a
great exciting cause to them [the New England Secessionists] to go
forward rapidly in the steps which they have already commenced toward a
separation from the Southern part of the Union.

"The [Federalist] members of the Senate," continues Merry, "have availed
themselves of the opportunity of their being collected here to hold
private meetings on this subject, and ... their plans and calculations
respecting the event have been long seriously resolved.... They
naturally look forward to Great Britain for support and assistance
whenever the occasion shall arrive." (Merry to Hawkesbury, March 1,
1804, as quoted in Adams: _U.S._ II, 392.)

[773] As early as 1784, Washington declared that he feared the effect on
the Western people "if the Spaniards on their right, and Great Britain
on their left, instead of throwing impediments in their way as they now
do, should hold out lures for their trade and alliance.... The western
settlers (I speak now from my own observations) stand as it were, upon a
pivot. The touch of a feather would turn them any way.... It is by the
cement of interest alone we can be held together." (Washington to the
Governor of Virginia, 1784, as quoted in Marshall, V, 15-16.)

[774] Marshall, V, 179.

[775] Jefferson to Breckenridge, Aug. 12, 1803, _Works_: Ford, X,
footnotes to 5-6.

[776] See Shepherd in _Am. Hist. Rev._ VIII, 501 _et seq._; also _ib._
IX, 748 _et seq._

[777] Clark: _Proofs of the Corruption of Gen. James Wilkinson_, 11-12,
16, 18-24, and documents therein referred to and printed in the appendix
to Clark's volume.

[778] "Wilkinson is entirely devoted to us. He enjoys a considerable
pension from the King." (Casa Yrujo, Spanish Minister, to Cevallos, Jan.
28, 1807, as quoted in Adams: _U.S._ III, 342.) And see affidavits of
Mercier and Derbigny, _Blennerhassett Papers_: Safford, footnotes to
429, 432.

"He [Wilkinson] had acted conformably as suited the true interests of
Spain, and so I assured him for his satisfaction." (Folch, Spanish
Governor of Florida, to the Governor-General of Cuba, June 25, 1807, as
quoted by Cox in _Am. Hist. Rev._ X, 839.)

[779] Parton: _Burr_, 383; see also McCaleb, 4-9.

It should be borne in mind that this was the same Wilkinson who took so
unworthy a part in the "Conway Cabal" against Washington during the
Revolution. (See vol. I, 121-23, of this work.)

For further treatment of the Spanish intrigue, see Cox in _Am. Hist
Rev._ XIX, 794-812; also Cox in _Southwestern Historical Quarterly_,
XVII, 140-87.

[780] Annual Message, Dec. 3, 1805, and Special Message, Dec. 6, 1805,
Richardson, I, 384-85, 388-89.

[781] See _Memoirs, J. Q. A._: Adams, I, 314-15.

Burr wrote: "In New-York I am to be disfranchised, and in New-Jersey
hanged" but "you will not ... conclude that I have become disposed to
submit tamely to the machinations of a banditti." Burr to his
son-in-law, March 22, 1805, Davis, II, 365.

[782] 1797-98.

[783] Lodge: _Alexander Hamilton_, 212-15; and see Turner in _Am. Hist.
Rev._ X, 276.

[784] Davis, II, 376-79.

[785] Only one previous incident in Burr's public life can even be
faintly criticized from the point of view of honesty. In 1799 there were
in New York City but two banking institutions, and both were controlled
by Federalists. These banks aided business men of the Federalist Party
and refused accommodation to Republican business men. The Federalists
controlled the Legislature and no State charter for another bank in New
York could be had.

Burr, as a member of the State Senate, secured from the Legislature a
charter for the Manhattan Company to supply pure water to the city; but
this charter authorized the use by the company of its surplus capital in
any lawful way it pleased. Thus was established a new bank where
Republican business men could get loans. Burr, in committee, frankly
declared that the surplus was to establish a bank, and Governor Jay
signed the bill. Although the whole project appears to have been open
and aboveboard as far as Burr was concerned, yet when the bank began
business, a violent attack was made on him. (Parton: _Burr_, 237-40.)
For charter see _Laws of New York_ (Webster and Skinner's edition),
1799, chap. 84.

[786] Merry to Harrowby, Aug. 6, 1804, as quoted in Adams: _U.S._ II,
395.

[787] McCaleb, viii-ix, 20-23.

[788] Merry to Harrowby (No. 15), "most secret," March 29, 1805, as
quoted in Adams: _U.S._ II, 403.

[789] Adams: _U.S._ II, 394.

[790] Davis, II, 381; also Parton: _Burr_, 412.

[791] Henry Adams, in his researches in the British and Spanish
archives, discovered and for the first time made public, in 1890, the
dispatches of the British, Spanish, and French Ministers to their
Governments. (See Adams: _U.S._ III, chaps. XIII and XIV.)

[792] Professor Walter Flavius McCaleb has exploded the myth as to
Burr's treasonable purposes, which hitherto has been accepted as
history. His book, the _Aaron Burr Conspiracy_, may be said to be the
last word on the subject. The lines which Professor McCaleb has therein
so firmly established have been followed in this chapter.

[793] Pitt died and Burr did not get any money from the British. (See
Davis, II, 381.)

[794] "Burr's intrigue with Merry and Casa Yrujo was but a consummate
piece of imposture." (McCaleb, viii.)

[795] Up to this time Dayton had had an honorable career. He had been a
gallant officer of the Revolution; a member of the New Jersey
Legislature for several years and finally Speaker of the House; a
delegate to the Constitutional Convention; a Representative in Congress
for four terms, during the last two of which he was chosen Speaker of
that body; and finally Senator of the United States. He came of a
distinguished family, was a graduate of Princeton, and a man of high
standing politically and socially.

[796] See Cox in _Am. Hist. Rev._ XIX, 801; also in _Southwestern Hist.
Quarterly_, XVII, 174.

[797] That Burr, Dayton, and others seriously thought of building a
canal around the falls of the Ohio on the Indiana side, is proved by an
act passed by the Legislature of Indiana Territory in August, 1805, and
approved by Governor William Henry Harrison on the 24th of that month.
The act--entitled "An Act to Incorporate the Indiana Canal Company"--is
very elaborate, authorizes a capital of one million dollars, and names
as directors George Rogers Clark, John Brown, Jonathan Dayton, Aaron
Burr, Benjamin Hovey, Davis Floyd, and six others. (See _Laws of the
Indiana Territory, 1801-1806_, 94-108.) The author is indebted to Hon.
Merrill Moores, M.C., of Indianapolis, for the reference to this
statute.

[798] Hildreth, V. 597.

[799] Adair had been a soldier in the Revolutionary War, an Indian
fighter in the West, a member of the Kentucky Constitutional Convention,
Speaker of the House of Representatives of that State, Registrar of the
United States Land Office, and was one of the ablest, most trusted, and
best beloved of Kentuckians.

Adair afterward declared that "the intentions of Colonel Burr ... were
to prepare and lead an expedition into Mexico, predicated on a war"
between Spain and the United States; "without a war he knew he could do
nothing." If war did not come he expected to settle the Washita lands.
(Davis, II, 380.)

[800] See McCaleb, 25; Parton: _Burr_, 385-86.

[801] McCaleb, 26; Parton: _Life of Andrew Jackson_, I, 307-10.

[802] Parton: _Jackson_, I, 309.

[803] Burr to his daughter, May 23,1805. This letter is delightful. "I
will ask Saint A. to pray for thee too. I believe much in the efficacy
of her prayers." (Davis, II, 372.)

[804] McCaleb, 27; Parton: _Burr_, 393.

[805] McCaleb, 29.

[806] Davies, Parton, and McCaleb state that the Catholic Bishop
appointed three Jesuits, but there was no bishop in New Orleans at that
time and the Jesuits had been suppressed.

[807] Burr to his daughter, May 23, 1805, Davis, II, 372.

[808] "No one equalled Andrew Jackson in warmth of devotion to Colonel
Burr." (Adams: _U.S._ III, 221.)

[809] Parton: _Jackson_, I, 311-12; and McCaleb, 81.

[810] McCaleb, 32-33. Minor was probably directed to do this by Casa
Yrujo himself. (See Cox: _West Florida Controversy_, 189.)

[811] Clark to Wilkinson, Sept. 7, 1805, Wilkinson: _Memoirs of My Own
Times_, II, Appendix XXXIII.

[812] Testimony of Major James Bruff, _Annals_, 10th Cong. 1st Sess.
589-609, 616-22.

[813] Except, of course, Wilkinson's story that Burr urged Western
revolution, during the conference of these two men at St. Louis.

[814] McCaleb, 34.

[815] Wilkinson's testimony, _Annals_, 10th Cong. 1st Sess. 611.

[816] McCaleb, 35; Parton: _Burr_, 401.

[817] McCaleb, 36-37.

[818] Cox, 190; and McCaleb, 39.

[819] McCaleb, 38.

[820] Pitt died January 6, 1806. The news reached America late in the
winter and Wilkinson learned of it some time in the spring. This fed his
alarm, first awakened by the rumors set afloat by Spanish agents of
which Clark had advised him. According to Davis and Parton, Wilkinson's
resolve to sacrifice Burr was now taken. (See Davis, II, 381-82; also
Parton: _Burr_, 412.)

[821] This was that Burr with his desperadoes would seize the President
and other officers of the National Government, together with the public
money, arsenals, and ships. If, thereafter, he could not reconcile the
States to the new arrangement, the bandit chief and his followers would
sail for New Orleans and proclaim the independence of Louisiana.

Professor McCaleb says that this tale was a ruse to throw Casa Yrujo off
his guard as to the now widespread reports in Florida and Texas, as well
as America, of Burr's intended descent upon Mexico. (See McCaleb,
54-58.) It should be repeated that the proposals of Burr and Dayton to
Merry and Casa Yrujo were not publicly known for many years afterward.

Wilkinson had coached Dayton and Burr in the art of getting money by
falsehood and intrigue. (_Ib._ 54.)

[822] Adams: _U.S._ III, 189-91.

[823] _Blennerhassett Papers_: Safford, 115.

[824] Blennerhassett to Burr, Dec. 21, 1805, _ib._ 118; and see Davis,
II, 392.

[825] McCaleb, 50-53.

[826] Plumer, 348; Parton: _Burr_, 403-04.

[827] Eaton assumed this title during his African career. He had no
legal right to it.

[828] Eaton had done good work as American Consul to Algiers, a post to
which he was appointed by President Adams. In 1804, Jefferson appointed
him United States Naval Agent to the Barbary States. With the approval
of the Administration, Eaton undertook to overthrow the reigning Pasha
of Tripoli and restore to the throne the Pasha's brother, whom the
former had deposed. In executing this project Eaton showed a
resourcefulness, persistence, and courage as striking as the means he
adopted were bizarre and the adventure itself fantastic. (Allen: _Our
Navy and the Barbary Corsairs_, 227 _et seq._)

Eaton charged that the enterprise failed because the American fleet did
not properly coöperate with him, and because Tobias Lear, American
Consul-General to Algiers, compromised the dispute with the reigning Bey
whom Eaton's nondescript "army" was then heroically fighting. (Eaton to
the Secretary of the Navy, Aug. 9, 1805, _Eaton_: Prentiss, 376.)

Full of wrath he returned to the United States, openly denouncing all
whom he considered in any way responsible for the African _débâcle_, and
demanding payment of large sums which he alleged had been paid by him in
advancing American interests in Africa. (_Ib._ 393, 406; also see Allen,
265.)

[829] See Truxtun's testimony, _infra_, 459-60.

[830] The talks between Burr and Eaton took place at the house of
Sergeant-at-Arms Wheaton, where Burr boarded. (_Annals_, 10th Cong. 1st
Sess. 510.)

[831] See Eaton's deposition, _Eaton_: Prentiss, 396-403; 4 Cranch,
462-67. (Italics are Eaton's.)

[832] Samuel Dana and John Cotton Smith. (See Eaton's testimony,
_Annals_, 10th Cong. 1st Sess. 512; and _Eaton_: Prentiss, 396-403.)

That part of Eaton's account of Burr's conversation which differs from
those with Truxtun and Decatur is simply unaccountable. That Burr was
capable of anything may be granted; but his mind was highly practical
and he was uncommonly reserved in speech. Undoubtedly Eaton had heard
the common talk about the timidity and supineness of the Government
under Jefferson and had himself used language such as he ascribed to
Burr.

Whichever way one turns, no path out of the confusion appears. But for
Burr's abstemious habits (he was the most temperate of all the leading
men of that period) an explanation might be that he and Eaton were very
drunk--Burr recklessly so--if he indulged in this uncharacteristic
outburst of loquacity.

[833] _Eaton_: Prentiss, 402.

[834] McCaleb, 62.

[835] Burr to Jackson, March 24, 1806, Parton: _Jackson_, I, 313-14.

Burr also told Jackson of John Randolph's denunciation of Jefferson's
"duplicity and imbecility," and of small politics receiving "more of
public attention than all our collisions with foreign powers, or than
all the great events on the theatre of Europe." He closed with the
statement, then so common, that such "things begin to make reflecting
men think, many good patriots to doubt, and some to despond." (See
McCaleb, 51.)

[836] This man, then thirty-five years of age, and "engaging in ...
appearance" (_Blennerhassett Papers_: Safford, 434), had had a
picturesque career. A graduate of Göttingen, he lived in Paris during
the Revolution, went to London for a time, and from there to Vienna,
where he practiced medicine as a cover for his real design, which was to
discover the prison where Lafayette was confined and to rescue him from
it. This he succeeded in doing, but both were taken soon afterward.
Bollmann was imprisoned for many months, and then released on condition
that he leave Austria forever. He came to the United States and entered
into Burr's enterprise with unbounded enthusiasm. His name often appears
as "Erick Bolman" in American records.

[837] Dayton to Wilkinson, July 24, 1806, _Annals_, 10th Cong. 1st sess.
560.

[838] See testimony of Littleton W. Tazewell, John Brokenbrough, and
Joseph C. Cabell. (_Annals_, 10th Cong. 1st Sess. 630, 675, 676).

[839] For Burr's cipher dispatch see Appendix D.

[840] _Annals_, 10th Cong. 1st sess. 424-28 and see McCaleb, 77.

Professor McCaleb evidently doubts the disinterestedness of Morgan and
his sons. He shows that they had been in questionable land transactions
and, at this moment, were asking Congress to grant them a doubtful land
claim. (See McCaleb, footnote to 77.)

[841] Testimony of Morgan's son, _Annals_, 10th Cong. 1st Sess. 424.

[842] "Colonel Burr, on this occasion as on others, comported himself
precisely as a man having 'treasonable' designs would _not_ comport
himself, unless he were mad or intoxicated." (Parton: _Burr_, 415.)
Professor McCaleb's analysis of the Morgan incident is thorough and
convincing. (See McCaleb, 76-78.)

[843] Nevill and Roberts to Jefferson, Oct. 7, 1806, "Letters in
Relation to Burr Conspiracy," MSS. Lib. Cong. This important letter set
out that "to give a correct written statement of those [Burr's]
conversations [with the Morgans] ... would be difficult ... and indeed,
according to our informant, much more was to be collected, from the
_manner_ in which certain things were said, and hints given than from
words used."

[844] McCaleb, 78-79; Parton: _Burr_, 411.

[845] McCaleb, 83-84; Parton: _Burr_, 412-13.

At this time Burr also wrote to William Wilkins and B. H. Latrobe
calling their attention to his Bastrop speculation. (Miscellaneous MSS.
N.Y. Pub. Lib.)

[846] See testimony of Dudley Woodbridge, _infra_, 489.

[847] McCaleb, 80.

[848] Parton: _Burr_, 415-16.

[849] McCaleb, 81.

[850] _Ib._; and see Parton: _Jackson_, I, 318.

[851] "There were not a thousand persons in the United States who did
not think war with Spain inevitable, impending, begun!" (Parton: _Burr_,
407; McCaleb, 110.)

[852] See Jefferson to Jackson, Dec. 3,1806, as quoted in McCaleb, 82.

[853] See testimony of Colonel Charles Lynch, _Annals_, 10th Cong. 1st
Sess. 656-58; and that of Thomas Bodley, Clerk of the Circuit Court,
_ib._ 655-56. The statements of these men are also very important as
showing Burr's plans and preparations at this time.

[854] McCaleb, 84-85.

[855] The Bastrop grant was accessible to the markets of New Orleans; it
was surrounded by Indian tribes whose trade was valuable; its forests
were wholly unexplored; it was on the Spanish border, and therefore an
admirable point for foray or retreat. (See McCaleb, 83; and Cox in
_Southwestern Hist. Quarterly_, XVII, 150.)

[856] Wilkinson to Adair, Sept. 28, 1806, as quoted in open letter of
Adair to the _Orleans Gazette_, May 16, 1807, "Letters in Relation,"
MSS. Lib. Cong.

[857] Wilkinson to Adair, Sept. 28, 1806, as quoted by Plumer, Feb. 20,
1807, "Register," Plumer MSS. Lib. Cong.

[858] Adair to Wilkinson, Oct. or Nov. 1806, as quoted by Plumer, Feb.
20, 1807, "Register," Plumer MSS. Lib. Cong.

[859] Wilkinson to Smith, Sept. 28, 1806, "Letters in Relation," MSS.
Lib. Cong.

[860] See vol. II, 560, of this work.

[861] The _Western World_, edited by the notorious John Wood, author of
the _History of the Administration of John Adams_, which was suppressed
by Burr. (See vol. II, 380, of this work.) Wood was of the same type of
irresponsible pamphleteer and newspaper hack as Callender and Cheetham.
His so-called "history" was a dull, untruthful, scandalous diatribe; and
it is to Burr's credit that he bought the plates and suppressed the
book. Yet this action was one of the reasons given for the remorseless
pursuit of him, after it had been determined to destroy him.

[862] McCaleb, 172-75.

[863] Adams: _U.S._ III, 276. This was a falsehood, since Burr had
proposed Western secession to the British Minister. But he knew that no
one else could have knowledge of his plot with Merry. It is both
interesting and important that to the end of his life Burr steadily
maintained that he never harbored a thought of dismembering the Nation.

[864] (Clay to Pindell, Oct. 15, 1828, _Works of Henry Clay_: Colton,
IV, 206; also _Private Correspondence of Henry Clay_: Colton, 206-08.)

So strong was his devotion to Hamilton, that "after he had attained full
age," Daveiss adopted the name of his hero as part of his own,
thereafter signing himself Joseph Hamilton Daveiss and requiring
everybody so to address him. "Chiefly moved ... by his admiration of
Colonel Hamilton and his hatred of Colonel Burr," testifies Henry Clay,
Daveiss took the first step in the series of prosecutions that ended in
the trial of Burr for treason. (_Ib._)

[865] Adams: _U.S._ III, 278.

[866] "I have no design, nor have I taken any measure to promote a
dissolution of the Union, or a separation of any one or more States from
the residue. I have neither published a line on this subject nor has any
one, through my agency, or with my knowledge. I have no design to
intermeddle with the Government or to disturb the tranquillity of the
United States, or of its territories, or any part of them.

"I have neither issued, nor signed, nor promised a commission to any
person for any purpose. I do not own a musket nor a bayonet, nor any
single article of military stores, nor does any person for me, by my
authority or with my knowledge.

"My views have been fully explained to, and approved by, several of the
principal officers of Government, and, I believe, are well understood by
the administration and seen by it with complacency. They are such as
every man of honor and every good citizen must approve." (Burr to Clay,
Dec. 1, 1806, _Priv. Corres._: Colton, 13-14.)

Parton says that this was substantially true: "Jefferson and his cabinet
undoubtedly knew ... that he was going to settle in the western country,
and that if the expected war should break out, he would head an
onslaught upon the Dons.

"His _ulterior_ views may have been known to one, or even two, members
of Jefferson's cabinet, for anything that can _now_ be ascertained. The
moment the tide really turned against this fated man, a surprising
ignorance overspread many minds that had before been extremely
well-informed respecting his plans." (Parton: _Burr_, 422-23; see also
McCaleb, 191.)

[867] "When the grand jury returned the bill of indictment not true, a
scene was presented in the Court-room which I had never before witnessed
in Kentucky. There were shouts of applause from an audience, not one of
whom ... would have hesitated to level a rifle against Colonel Burr, if
he believed that he aimed to dismember the Union, or sought to violate
its peace, or overturn its Constitution." (Clay to Pindell, Oct. 15,
1828, _Priv. Corres._: Colton, 207.)

[868] Adams: _U.S._ III, 282-83; McCaleb, 192-93; Parton: _Burr_,
418-22.

[869] Burr to Smith, as quoted in McCaleb, 183.

[870] Parton: _Burr_, 423.

[871] The Spanish Minister accurately explained to his home Government
the motives that now animated the commander of the American Army:

"Wilkinson is entirely devoted to us. He enjoys a considerable pension
from the King.... He anticipated ... the failure of an expedition of
this nature [Burr's invasion of Mexico]. Doubtless he foresaw from the
first that the improbability of success in case of making the attempt
would leave him like the dog in the fable with the piece of meat in his
mouth; that is, that he would lose [both] the honorable employment ...
[as American Commander] and the generous pension he enjoys from the
King. These considerations, secret in their nature, he could not explain
to Burr; and when the latter persisted in an idea so fatal to
Wilkinson's interests, nothing remained but to take the course adopted.

"By this means he assures his pension; and will allege his conduct on
this occasion as an extraordinary service, either for getting it
increased, or for some generous compensation.

"On the other hand this proceeding secures his distinguished rank in the
military service of the United States, and covers him with a popularity
which may perhaps result in pecuniary advantages, and in any case will
flatter his vanity.

"In such an alternative he has acted as was to be expected; that is, he
has sacrificed Burr in order to obtain, on the ruins of Burr's
reputation, the advantages I have pointed out." (Casa Yrujo to Cevallos,
Jan. 28, 1807, as quoted in Adams: _U.S._ III, 342-43.)

[872] Swartwout, under oath, denied that he had told Wilkinson this
story. Swartwout's affidavit is important. He swears that he never heard
of the revolutionizing of "the N[ew] O[rleans] Territory" until
Wilkinson mentioned it--"I first heard of such a project from
Wilkinson"; that Burr never had spoken of attacking Mexico except "in
case of war with Spain"; that if there were no war, Burr intended to
settle the Washita lands. (See Henshaw in _Quarterly Pub. Hist, and
Phil. Soc. Ohio_, IX, Nos. 1 and 2, 53-54.)

This young man made a deep impression of honesty and straightforwardness
on all who came in contact with him. (See testimony of Tazewell, Cabell,
and Brokenbrough, _Annals_, 10th Cong. 1st Sess. 633.) "Swartwout is a
fine genteel intelligible young man." (Plumer to Mason, Jan. 30, 1807,
Plumer MSS. Lib. Cong.)

Notwithstanding his frank and engaging manner, Swartwout was at heart a
basely dishonest person. Thirty years later, when Collector of the Port
of New York, he embezzled a million and a quarter dollars of the public
funds. (Bassett: _Life of Andrew Jackson_, II, 452-53.)

[873] Wilkinson's dispatch, Oct. 20, 1806, "Letters in Relation," MSS.
Lib. Cong. Wilkinson's dispatch to Jefferson was based on the
revelations which he pretended to have drawn from Swartwout.

[874] The dispatch would go on file in the War Department; the "personal
and confidential" communication to Jefferson would remain in the
President's hands.

[875] Wilkinson to Jefferson, Oct. 21, 1806, "Letters in Relation," MSS.
Lib. Cong.

[876] See _infra_, chap. VIII.

[877] Jefferson's Cabinet Memorandum, Oct. 22, 1806, as quoted in Adams:
_U.S._ III, 278-80.

[878] _Ib._ Oct. 25, 1806, as quoted in Adams: _U.S._ III, 281.

[879] Jefferson's Proclamation, Nov. 27, 1806, _Works_, Ford, X, 301-02;
Wilkinson: _Memoirs_, II, Appendix XCVI.

[880] Tyler had been in the New York Legislature with Burr and there
became strongly attached to him. (See Clark: _Onondaga_.) He went to
Beaver, Pennsylvania, in the interests of Burr's enterprise, and from
there made his way to Blennerhassett's island. Tyler always maintained
that the sole object of the expedition was to settle the Washita lands.
(See his pathetic letter asserting this to Lieutenant Horatio Stark,
Jan. 23, 1807, "Letters in Relation," MSS. Lib. Cong.)

[881] Hildreth, V, 619; Parton: _Burr_, 436-38.

[882] Jackson to Claiborne, Nov. 12, 1806, Parton: _Jackson_, I, 319;
and see McCaleb, 253.

[883] Adams: _U.S._ III, 287; Parton: _Jackson_, I, 320-21.

[884] Parton inaccurately says that the Proclamation reached Nashville
after Burr's departure. (Parton: _Jackson_, I, 322.)

[885] Adams: _U.S._ III, 288; Parton: _Jackson_, I, 321.

[886] For instance, at Nashville, Burr was burnt in effigy in the public
square. (Parton: _Jackson_, I, 322.) At Cincinnati an amusing panic
occurred: three merchant scows loaded with dry goods were believed to be
a part of Burr's flotilla of war vessels about to attack the town. The
militia was called out, citizens organized for defense, the adjacent
country was appealed to for aid. (See McCaleb, 248-49.)

[887] Wilkinson to Jefferson, Nov. 12, 1806, Wilkinson: _Memoirs_, II,
Appendix C.

[888] Iturrigaray to Cevallos, March 12, 1807, as quoted in McCaleb,
169; and see Shepherd in _Am. Hist. Rev._ IX, 533 _et seq._

The thrifty General furnished Burling with a passport through the posts
he must pass. ("Letters in Relation," as quoted in McCaleb, 166.)

Credentials to the Spanish official were also given Burling by one of
Wilkinson's friends, Stephen Minor of Natchez, the man who had first set
on foot the rumor of Burr's secession intentions. He was also in the pay
of Spain. (_Ib._ 166-67.)

The Spaniards aided Burling on his journey in every way possible.
(Herrera to Cordero, Dec. 1, 1806, as quoted in _ib._ 167-68.)

[889] Iturrigaray to Cevallos, March 12, 1807, as quoted in McCaleb,
168-69.

[890] _Ib._ 171.

[891] Wilkinson to Jefferson, March 12, 1807, "Letters in Relation,"
MSS. Lib. Cong.

[892] Wilkinson to Cushing, Nov. 7, 1806, Wilkinson: _Memoirs_, II,
Appendix XCIX.

[893] Wilkinson to Freeman, Wilkinson: _Memoirs_, II, Appendix XCIX.

[894] Wilkinson to Claiborne, Nov. 12, 1806, _ib._ 328.

[895] Wilkinson to Claiborne, Dec. 6 and 7, 1806, as quoted in McCaleb,
205-06.

[896] _Ib._ 209-10.

[897] Wilkinson to Clark, Dec. 10, 1806, Clark: _Proofs_, 150; also
McCaleb, 212; and see Wilkinson to Claiborne, Dec. 15, 1806, as quoted
in McCaleb, 213-14.

[898] Swartwout was treated in a manner peculiarly outrageous. Before
his arrest Wilkinson had borrowed his gold watch, and afterward refused
to return it. When the soldiers seized Swartwout they "hurried" him
across the river, lodged him "for several days & nights in a poor
inhospitable shed--& deprived of the necessaries of life."

Finally, when ordered to march with his guard--and being refused any
information as to where he was to be taken--the prisoner declared that
he was to be murdered and leapt into the river, crying, "I had as well
die here as in the woods," whereupon "the L^t drew up his file of six
men & ordered them to shoot him. The soldiers directed their guns at him
& snapt them, but owing to the great rain, 3 of the guns flashed in the
pan, & the other's would not take fire. The men pursued & took him. But
for the wetness of the powder this unfortunate young man must have
be[en] murdered in very deed."

Swartwout was not permitted to take his clothing with him on the ship
that carried him to Baltimore; and the officer in charge of him was
under orders from Wilkinson to put his prisoner in chains during the
voyage. (Plumer, Feb. 21, 1807, "Register," Plumer MSS. Lib. Cong.)

[899] Wilkinson's return reported in the _Orleans Gazette_, Dec. 18,
1806, as quoted in McCaleb, 217. It does not appear what return was made
in the matter of the application for a writ of habeas corpus in favor of
Swartwout.

[900] Wilkinson to Jefferson, printed in _National Intelligencer_, Jan.
23, 1807, as quoted in McCaleb, 218.

[901] This was one cause of Jefferson's hatred of Livingston. For the
celebrated litigation between these men and the effect of it on Marshall
and Jefferson, see vol. IV, chap. II, of this work.

[902] McCaleb, 219-21.

[903] Hildreth, V, 613.

[904] Plumer's résumé of a letter from Adair to Clay. (Feb. 20, 1807,
"Register," Plumer MSS. Lib. Cong.)

For this outrage Adair, within a year, brought suit against Wilkinson
for false imprisonment. This was bitterly fought for ten years, but
finally Adair secured judgment for $2500, "against which Wilkinson was
indemnified by Congress." (Hildreth, V, 627.)

For three or four years Adair continued in public disfavor solely
because of his supposed criminal connection with Burr, of which his
arrest by Wilkinson convinced the inflamed public mind. He slowly
recovered, however, rendered excellent service as an officer in the War
of 1812, and under Jackson commanded the Kentucky troops at the battle
of New Orleans with distinguished gallantry. In 1820 the old veteran was
elected Governor of Kentucky. Afterward he was chosen Representative in
Congress from his district.

[905] Plumer's résumé of Adair's letter to Clay, _supra_, note 1. Every
word of Adair's startling account of his arrest was true. It was never
even denied. John Watkins told Wilkinson of a conversation with Adair
immediately after the latter's arrival which showed that nobody had
reason to fear Burr: "He [Adair] observed ... that the bubble would soon
burst & signified that the claims were without foundation & that he had
seen nothing like an armament or preparations for a warlike expedition."
(Watkins to Wilkinson, Jan. 14, 1807, Wilkinson MSS. Chicago Hist. Soc.)

Professor Cox has suggested to the author that Wilkinson's summary
arrest of Adair was to prevent the further circulation of his statement.

[906] "During the disturbances of Burr the aforesaid general [Wilkinson]
has, by means of a person in his confidence, constantly maintained a
correspondence with me, in which he has laid before me not only the
information which he acquired, but also his intentions for the various
exigencies in which he might find himself." (Folch to the
Governor-General of Cuba, June 25, 1807, as quoted by Cox in _Am. Hist.
Rev._ X, 839.)

[907] Jefferson's Message, Dec. 2, 1806, _Annals_, 9th Cong. 2d Sess.
12; Richardson, I, 406.

[908] "We have been, & still are, both amused & perplexed with the
rumours, reports, & conjectures respecting Aaron Burr. They are
numerous, various, & contradictory.... I must have plenary evidence
before I believe him capable of committing the hundredth part of the
absurd & foolish things that are ascribed to him.... The president of
the United States, a day or two since, informed me that he knew of no
evidence sufficient to convict him of either high crimes or
misdemeanors." (Plumer to Jeremiah Mason, Jan. 4, 1807, Plumer MSS. Lib.
Cong.) See also Plumer to Langdon, Dec. 1806, and to Livermore, Jan. 19,
1807, Plumer MSS. _loc. cit._

These letters of Plumer's are most important. They state the general
opinion of public men, especially Federalists, as expressed in their
private conversations.

"I never believed him to be a Fool," wrote John Adams to his most
intimate friend. "But he must be an Idiot or a Lunatick if he has really
planned and attempted to execute such a Project as is imputed to him."
Politicians have "no more regard to Truth than the Devil.... I suspect
that this Lying Spirit has been at Work concerning Burr.... But if his
guilt is as clear as the Noon day Sun, the first Magistrate ought not to
have pronounced it so before a Jury had tryed him." (Adams to Rush, Feb.
2, 1807, _Old Family Letters_, 128-29.) See also Adams to Pickering,
Jan. 1, 1807, Pickering MSS. Mass. Hist. Soc.; and Peters to Pickering,
Feb. 1807, Pickering MSS. _loc. cit._

Marshall undoubtedly shared the common judgment, as his conduct at
Burr's trial abundantly shows.

[909] _Annals_, 9th Cong. 2d Sess. 336.

[910] _Ib._ 347.

[911] _Ib._ 357-58.

[912] _Annals_, 9th Cong. 2d Sess. 39-41. Jefferson's Message, Jan. 22,
1807, Richardson, I, 412-17.

[913] _Annals_, 9th Cong. 2d Sess. 43; Richardson, I, 416.

[914] _Annals_, 9th Cong. 2d Sess. 40. (Italics the author's.)

[915] "Wilkinson's letter is a curiosity.... Tis Don Adriano de Armado
the second." (J. Q. Adams to L. C. Adams, Dec. 8, 1806, _Writings, J. Q.
A._: Ford, III, footnote to 157.)

[916] Plumer, Jan. 22, 1807, "Diary," Plumer MSS. Lib. Cong.

Senator Plumer wrote his son, concerning Wilkinson's account of Burr's
letter: "I am satisfied he has not accurately decyphered it. There is
more of Wilkinsonism than of Burrism in it." (Plumer to his son, Jan.
24, 1807, Plumer MSS. Lib. Cong.)




CHAPTER VII

THE CAPTURE AND ARRAIGNMENT

    It was President Jefferson who directed and animated the
    prosecution. (Winfield Scott.)

    The President's popularity is unbounded and his will is that of
    the nation. (Joseph Nicholson.)

    The press from one end of the continent to the other has been
    enlisted to excite prejudices against Colonel Burr. (John
    Wickham.)

    Two thirds of our speeches have been addressed to the people.
    (George Hay.)

    It would be difficult or dangerous for a jury to acquit Burr,
    however innocent they might think him. (Marshall.)


While Washington was still agitated by the President's Special Message,
the long winter voyage of Bollmann and Swartwout ended at Baltimore, and
Burr's dazed dispatch-bearers were brought by military guards to the
National Capital. There, on the evening of January 22, they were thrown
into the military prison at the Marine Barracks, and "guarded, night and
day, by an officer & 15 soldiers of the Marine Corps."[917]

The ship bearing James Alexander had made a swift passage. On its
arrival, friends of this prisoner applied to Joseph F. Nicholson, now
United States Judge at Baltimore, for a writ of habeas corpus. Alexander
was at once set free, there being not the slightest evidence to justify
his detention.[918]

A week or two later the schooner Thatcher, on board which was the
disconsolate and dumbfounded General Adair--Wilkinson's fourth prisoner
to be sent to Jefferson--tied up to its dock at Baltimore and he was
delivered "over to the commander of the fort at that city." But a
passenger on the vessel, "a stranger ... of his own accord ... assured
[Adair] he would procure a writ of Habeas Corpus for him." Adair also
was "immediately liberated, ... there being no evidence against
him."[919]

After the incarceration of Bollmann and Swartwout in Washington,
attorneys were secured for them and an application was made to Judge
William Cranch, United States Judge for the District of Columbia, for a
writ of habeas corpus in their behalf, directed to Colonel Wharton, who
was in command at Washington. Wharton brought the luckless prisoners
into court and stated that "he held them under the orders of his
superior officer. They were then taken upon a bench warrant charging
them with treason which superseded the writ. A motion was made by the
prisoners council ... that they be discharged. The Court required
evidence of their probable guilt."[920]

Jefferson now took a hand in the prosecution. He considered Wilkinson's
affidavit insufficient[921] to hold Bollmann and Swartwout, and, in
order to strengthen the case against them, secured from Eaton an
affidavit stating the dire revelations which Eaton alleged Burr had made
to him a year before.[922] Eaton's theatrical story was thus given to
the press,[923] and not only fortified the public conviction that a
conspiracy to destroy the Union had been under way, but also horrified
the country by the account of Burr's intention to assassinate Jefferson.

The Attorney-General and the United States District Attorney,
representing the Government, demanded that Bollmann and Swartwout be
held; Charles Lee, Robert Goodloe Harper, and Francis S. Key, attorneys
for the prisoners, insisted that they be released. Long was the argument
and "vast" the crowd that heard it; "collected & firm" was the
appearance of the accused men.[924] So universal was the curiosity,
says John Quincy Adams, that the Senate was "scarcely able here to form
a quorum ... and the House ... actually adjourned."[925] The court
decided that Bollmann and Swartwout should be sent back to prison "for
trial without bail or main-prize." For the first time in our history a
National court divided on political grounds. Judge Cranch, a Federalist
first appointed by President Adams,[926] thought that the prisoners
should be discharged, but was overruled by his associates, Judges
Nicholas Fitzhugh and Allen Bowie Duckett, Republicans appointed by
Jefferson.[927]

But John Marshall and the Supreme Court had yet to be reckoned with.
Counsel for the reimprisoned men at once applied to that tribunal for a
writ of habeas corpus, and Marshall directed process to the jailer to
show cause why the writ should not issue.

An extreme and violent step was now taken to end the proceedings in
court. On Friday, January 23, 1807, the day after the President's
Special Message denouncing Burr had been read in the Senate, Senator
Giles, who, it should be repeated, was Jefferson's personal
representative in that body, actually moved the appointment of a
committee to draft a bill "to suspend the privilege of the writ of
habeas corpus." Quickly Giles himself reported the measure, the Senate
suspended its rules, and the bill was hurriedly passed, only Bayard of
Delaware voting against it.[928] More astounding still, Giles
recommended, and the Senate adopted, a special message to the House,
stating the Senate's action "which they think expedient to communicate
to you in confidence," and asking the popular branch of Congress to pass
the Senate bill without delay.[929]

Immediately after the House convened on Monday, January 26,[930] Senator
Samuel Smith of Maryland appeared on the floor and delivered this
"confidential message," together with the Senate bill, which provided
that "in all cases, where any person or persons, charged on oath with
treason, misprision of treason, or other high crime or misdemeanor ...
shall be arrested or imprisoned ... the privilege of the writ of habeas
corpus shall be ... suspended, for and during the term of three
months."[931]

The House was astounded. Party discipline was, for the moment,
wrathfully repudiated. Mr. Philip R. Thompson of Virginia instantly
moved that the "message and the bill received from the Senate ought not
to be kept secret and that the doors be opened." Thompson's motion was
adopted by 123 yeas to 3 nays.

Then came a motion to reject the bill, followed by a brief and almost
one-sided debate, which was little more than the angry protest of the
representatives of the people against the proposed overthrow of this
last defense of liberty. William A. Burwell of Virginia asked whether
there was any danger "to justify this suspension of this most important
right of the citizen.... He could judge from what he had already seen
that men, who are perfectly innocent, would be doomed to ... undergo the
infamy of the dungeon."[932] "Never," exclaimed John W. Eppes of the
same State, "under this Government, has personal liberty been held at
the will of a single individual."[933]

On the other hand, Joseph B. Varnum of Massachusetts said that Burr's
"insurrection" was the worst in all history.[934] James Sloan of New
Jersey made a similar statement.[935] But the House promptly rejected
the Senate bill by 113 yeas to 19 nays. The shameful attempt to prevent
John Marshall from deciding whether Bollmann and Swartwout were entitled
to the benefit of the most sacred writ known to the law was thereby
defeated and the Chief Justice was left free to grant or reject it, as
justice might require.

The order of the court of the District of Columbia was that Bollmann and
Swartwout "be committed to prison of this court, to take their trial for
treason against the United States, by levying war against them."[936] In
the Supreme Court the prisoners and the Government were represented by
the same counsel who had argued the case below, and Luther Martin also
appeared in behalf of the men whose long-continued and, as he believed,
wholly illegal suffering had aroused the sympathies of that admirable
lawyer.

The Supreme Court first decided that it had jurisdiction. The
application for the writs of habeas corpus was, in effect, an appeal
from the decision of the District Court. On this point Justice Johnson
delivered a dissenting opinion, observing, as an aside, that the
argument for the prisoners had shown "an unnecessary display of energy
and pathos."[937] The affidavit of General Wilkinson and his version of
the Burr letter, concerning which "the court had difficulty," were
admitted by a vote of the majority of the Justices. At noon on the
twenty-first day of February, 1807, Marshall delivered the opinion of
the majority of the court upon the main question,[938] "whether the
accused shall be discharged or held to trial."

The specific charge was that of "treason in levying war against the
United States." This, declared Marshall, was the most serious offense of
which any man can be accused: "As there is no crime which can more
excite and agitate the passions of men than treason, no charge demands
more from the tribunal before which it is made a deliberate and
temperate inquiry. Whether this inquiry be directed to the fact or to
the law, none can be more solemn, none more important to the citizen or
to the government; none can more affect the safety of both."

In order that it should never be possible to extend treason "to offenses
of minor importance," the Constitution "has given a rule on the subject
both to the legislatures and the courts of America, which neither can be
permitted to transcend." Marshall then read, with solemn impressiveness,
these words from the Constitution of the United States: "Treason against
the United States shall consist only in levying war against them, or in
adhering to their enemies, giving them aid and comfort."

To support the charge against Bollmann and Swartwout, said Marshall,
"war must be actually levied.... To conspire to levy war, and actually
to levy war, are distinct offenses. The first must be brought into open
action by the assemblage of men for a purpose treasonable in itself, or
the fact of levying war cannot have been committed." It was not
necessary for the commission of this crime that a man should actually
"appear in arms against his country.... If a body of men be actually
assembled for the purpose of effecting by force a treasonable purpose;
all those who perform any part, however minute, or however remote from
the scene of the action, and who are actually leagued in the general
conspiracy, are to be considered as traitors."[939] This passage was
soon to cause Marshall great embarrassment when he was confronted with
it in the trial of Aaron Burr at Richmond.

[Illustration: _John Marshall_
_From a painting by Richard N. Brooke_]

Did this mean that men who go to the very edge of legal
boundaries--who stop just short of committing treason--must go
scathless? By no means! Such offenses could be and must be provided for
by statute. They were not, like treason, Constitutional crimes. "The
framers of our Constitution ... must have conceived it more safe that
punishment in such cases should be ordained by general laws, formed upon
deliberation, under the influence of no resentments, and without knowing
on whom they were to operate, than that it should be inflicted under the
influence of those passions which the occasion seldom fails to excite,
and which a flexible definition of the crime, or a construction which
would render it flexible, might bring into operation."

This was a direct rebuke to Jefferson. There can be no doubt that
Marshall was referring to the recent attempt to deprive Bollmann and
Swartwout of the protection of the courts by suspending the writ of
habeas corpus. "It is, therefore, more safe," continued Marshall, "as
well as more consonant to the principles of our constitution, that the
crime of treason should not be extended by construction to doubtful
cases; and that crimes not clearly within the constitutional definition
should receive such punishment as the legislature in its wisdom may
provide."

What do the words "levying war" mean? To complete that crime, Marshall
repeated, "there must be an actual assemblage of men for the purpose of
executing a treasonable design ... but no conspiracy for this object, no
enlisting of men to effect it, would be an actual levying of war."[940]
He then applied these principles to the testimony. First he took up the
deposition of Eaton[941] which, he said, indicated that the invasion of
Mexico "was the immediate object"[942] that Burr had in mind.

But, asked the Chief Justice, what had this to do with Bollmann and
Swartwout? The prosecution connected the prisoners with the statements
made in Eaton's deposition by offering the affidavit of General
Wilkinson, which included his version of Burr's celebrated letter.
Marshall then overruled the "great and serious objections made" to the
admission of Wilkinson's affidavit. One of these objections was to that
part which purported to set out the Wilkinson translation of the Burr
cipher, the original letter not having been presented. Marshall
announced that "a division of opinion has taken place in the court," two
of the Judges believing such testimony totally inadmissible and two
others holding that it was proper to consider it "at this incipient
stage of the prosecution."

Thereupon Marshall analyzed Wilkinson's version of Burr's confidential
cipher dispatch.[943] It was so vague, said the Chief Justice, that it
"furnishes no distinct view of the design of the writer." But the
"coöperation" which Burr stated had been secured "points strongly to
some expedition against the territories of Spain."

Marshall then quoted these words of Burr's famous message: "'Burr's plan
of operations is to move down rapidly from the falls on the 15th of
November, with the first 500 or 1,000 men in the light boats now
constructing for that purpose, to be at Natchez between the 5th and 15th
of December, there to meet Wilkinson; then to determine whether it will
be expedient in the first instance to seize on, or to pass by, Baton
Rouge. The people of the country to which we are going are prepared to
receive us. Their agents now with Burr say that if we will protect their
religion, and will not subject them to a foreign power, in three weeks
all will be settled.'"

This language was, said Marshall, "rather more explicit." But "there is
no expression in these sentences which would justify a suspicion that
any territory of the United States was the object of the expedition. For
what purpose seize on Baton Rouge? Why engage Spain against this
enterprise, if it was designed against the United States?"[944]

Burr's statement that "the people of the country to which we are going
are prepared to receive us," was, said Marshall, "peculiarly appropriate
to a foreign country." And what was the meaning of the statement: "Their
agents now with Burr say, that if we will protect their religion, and
will not subject them to a foreign power, in three weeks all will be
settled"? It was not probable that this referred to American citizens;
but it perfectly fitted the Mexicans. "There certainly is not in the
letter delivered to General Wilkinson ... one syllable which has a
necessary or a natural reference to an enterprise against the territory
of the United States."

According to Wilkinson's affidavit, Swartwout knew the contents of the
dispatch he was carrying; Wilkinson had deposed that Burr's messenger
had frankly said so. Without stating that, in his long journey from New
York through the Western States and Territories in quest of Wilkinson,
he had "performed on his route any act whatever which was connected with
the enterprise," Swartwout had declared "their object to be 'to carry an
expedition to the Mexican provinces.'"[945] This, said Marshall, was
"explanatory of the letter of Col. Burr, if the expressions of that
letter could be thought ambiguous."

But Wilkinson declared in his affidavit that Swartwout had also told him
that "this territory would be revolutionized where the people were ready
to join them, and that there would be some seizing, he supposed at New
Orleans."[946] If this meant that the Government in any American
territory was to be revolutionized by force, "although merely as a ...
means of executing some greater projects, the design was unquestionably
treasonable," said Marshall; "and any assemblage of men for that purpose
would amount to a levying of war." It was, then, of first importance to
discover the true meaning of the youthful and indiscreet messenger.

For the third time the court divided. "Some of the judges," Marshall
explained, suppose that these words of Swartwout "refer to the territory
against which the expedition was intended; others to that in which the
conversation was held. Some consider the words, if even applicable to a
territory of the United States, as alluding to a revolution to be
effected by the people, rather than by the party conducted by Col.
Burr."

Swartwout's statement, as given in Wilkinson's affidavit, that Burr was
assembling thousands of armed men to attack Mexico, did not prove that
Burr had gathered an army to make war on the United States.[947] If the
latter were Burr's purpose, it was not necessary that the entire host
should have met at one spot; if detachments had actually formed and were
marching to the place of rendezvous, treason had been committed.
Following his tedious habit of repeating over and over again, often in
identical language, statements already clearly made, Marshall for the
fourth time asserted that there must be "unequivocal evidence" of "an
actual assemblage."

The mere fact that Burr "was enlisting men in his service ... would not
amount to levying war." That Swartwout meant only this, said Marshall,
was "sufficiently apparent." If seven thousand men had actually come
together in one body, every one would know about it; and surely,
observed Marshall, "some evidence of such an assembling would have been
laid before the court."

Burr's intention to do certain "seizing at New Orleans" did not amount
to levying war from anything that could be inferred from Swartwout's
statement. It only "indicated a design to rob." Having thus examined all
the testimony before the court, Marshall announced the opinion of the
majority of the Justices that there was not "sufficient evidence of his
[Swartwout's] levying war against the United States to justify his
commitment on the charge of treason."[948]

The testimony against Bollmann was, if possible, still weaker. There
was, indeed, "no evidence to support a charge of treason" against him.
Whoever believed the assertions in Wilkinson's affidavit could not doubt
that both Bollmann and Swartwout "were engaged in a most culpable
enterprise against the dominions of a power at peace with the United
States"; but it was apparent that "no part of this crime was committed
in the District of Columbia." They could not, therefore, be tried in
that District.

Upon that point the court was at last unanimous. The accused men could
have been tried in New Orleans--"there existed a tribunal in that
city," sarcastically observed Marshall; but to say that citizens might
be seized by military power in the jurisdiction where the alleged crime
was committed and thereafter tried "in any place which the general might
select, and to which he might direct them to be carried," was not to be
thought of--such a thing "would be extremely dangerous." So the
long-suffering Bollmann and Swartwout were discharged.[949]

Thus, by three different courts, five of the "conspirators" had
successively been released. In the case of Ogden, there was no proof; of
Alexander, no proof; of Adair, no proof; of Bollmann and Swartwout, no
proof. And the Judges had dared to set free the accused men--had refused
to consign them to prison, despite public opinion and the desire of the
Administration. Could anything be more undemocratic, more reprehensible?
The Supreme Court, especially, should be rebuked.

On learning of that tribunal's action, Giles adjourned the meeting of
his committee on the treason bill in order to secure immediately a copy
of Marshall's opinion. In a true Virginian rage, Giles threatened to
offer an amendment to the Constitution "taking away _all_ jurisdiction
of the Supreme Court in criminal cases." There was talk of impeaching
every occupant of the Supreme Bench.[950]

More news had now reached Washington concerning the outrages committed
at New Orleans; and on the day that the attorneys for Bollmann and
Swartwout applied to the Supreme Court for writs of habeas corpus,
James M. Broom of Delaware rose in the House, and introduced a
resolution "to make further provision for securing the privilege of the
writ of habeas corpus to persons in custody under or by color of the
authority of the United States."[951] While the cases were being argued
in the Supreme Court and the divided Judges were wrangling over the
disputed points, a violent debate sprang up in the House over Broom's
resolution. "If, upon every alarm of conspiracy," said Broom, "our
rights of personal liberty are to be entrusted to the keeping of a
military commander, we may prepare to take our leave of them
forever."[952] All day the debate continued; on the next day, February
18, while Marshall was delivering his opinion that the Supreme Court had
jurisdiction of the application of Bollmann and Swartwout, the
controversy in the House was renewed.

James Elliot of Vermont said that "most of the privileges intended to be
secured" by the Fourth, Fifth, and Sixth Amendments[953] "have recently
been denied ... at the point of the bayonet, and under circumstances of
peculiar violence." He read Wilkinson's impertinent return to the
Orleans County Court. This, said Elliot, was "not obedience to the
laws ... but ... defiance.... What necessity could exist for seizing one
or two wandering conspirators, and transporting them fifteen hundred or
two thousand miles from the Constitutional scene of inquisition and
trial, to place them particularly under the eye of the National
Government"?[954] Not only was the swish of the party whip heard in the
House, he asserted, but members who would not desert the fundamentals of
liberty must "be prepared for the insinuation that we countenance
treason, and sympathize with traitors."[955]

The shrill voice of John Randolph was heard. Almost his first sentence
was a blow at Jefferson. If the President and his party "ever quit the
ground of trial by jury, the liberty of the press, and the subordination
of the military to the civil authority, they must expect that their
enemies will perceive the desertion and avail themselves of the
advantage."[956] Randolph assailed the recent attempt to suspend the
writ of habeas corpus which, he said, "was intended ... to cover with a
mantle the most daring usurpation which ever did, will, or can happen,
in this or any country. There was exactly as much right to shoot the
persons in question as to do what has been done."[957] The Declaration
of Independence had assigned wrongs of precisely the kind suffered by
Bollmann and Swartwout "as one of the grievances imposed by the British
Government on the colonies. Now, it is done under the Constitution,"
exclaimed Randolph, "and under a republican administration, and men are
transported without the color of law, nearly as far as across the
Atlantic."[958]

Again and again angry speakers denounced the strenuous attempts of the
Administration's supporters to influence Republican votes on partisan
grounds. Only by the most desperate efforts was Jefferson saved from the
rebuke and humiliation of the passage of the resolution. But his escape
was narrow. Indefinite postponement was voted by the dangerous majority
of 2 out of a total of 118 members.[959]

While Burr's messengers were on the high seas, prisoners of war, and
Wilkinson at New Orleans was saving the Republic by rending its laws,
Burr himself, ignorant of all, was placidly making his way down the Ohio
and Mississippi with his nine boats and sixty adventurers, mostly
youths, many only boys. He had left Jackson at Nashville on December 22,
and floating down the Cumberland in two unarmed boats, had joined the
remainder of the little expedition.

He then met for the first time the young adventurers whom
Blennerhassett, Comfort Tyler of Syracuse, New York, and Davis Floyd of
the tiny settlement of New Albany, Indiana Territory, had induced to
join the expedition. On a cold, rainy December morning they were drawn
up in a semi-circle on a little island at the mouth of the Cumberland
River, and Burr was introduced to each of them. Greeting them with his
customary reserved friendliness, he told them that the objects of the
expedition not already disclosed to them would be revealed at a more
opportune time.[960]

Such was the second "overt act" of the gathering of an armed host to
"levy war" on the United States for which Jefferson later fastened the
charge of treason upon Aaron Burr.

As it floated down the Ohio and Mississippi, the little flotilla[961]
stopped at the forts upon the river bluffs, and the officers proffered
Burr all the courtesies at their command. Seven days after Burr had left
Fort Massac, Captain Bissel, in answer to a letter of inquiry from
Andrew Jackson, assured him that "there has nothing the least alarming
appeared"; Burr had passed with a few boats "having nothing on board
that would even suffer a conjecture, more than a man bound to
market."[962] John Murrell of Tennessee, sent on a secret mission of
investigation, reported to Jackson that, pursuant to instructions, he
had closely followed and examined Burr's movements on the Cumberland;
that he had heard reports that Burr "had gone down the river with one
thousand armed men"; but Murrell had found the fact to be that there
were but ten boats with only "sixty men on board," and "no appearance of
arms."[963]

During the week when John Randolph, in the House, was demanding
information of the President, and Wilkinson, in New Orleans, was making
his second series of arrests, Burr, with his little group of boats and
small company of men--totally unequipped for anything but the settlement
of the Washita lands, and poorly supplied even for that--serenely drew
up to the landing at the small post of Bayou Pierre in the Territory of
Mississippi. He was still uninformed of what was going forward at New
Orleans and at Washington--still unconscious of the storm of hatred and
denunciation that had been blown up against him.

At the little settlement, Burr learned for the first time of the fate
prepared for him. Bloody and violent were the measures he then adopted!
He wrote a letter to Cowles Mead, Acting Governor of the Territory,
stating that rumors he had just heard were untrue; that "his object is
agriculture and his boats are the vehicles of immigration." But he
"hinted at resistance to any attempt to coerce him."[964]

What followed was related by Mead himself. As directed by the War
Department, he had prorogued the Legislature, put the Territory in a
state of defense, and called out the militia. When Burr's letter came,
Mead ordered these frontier soldiers to "rendezvous at certain
points.... With the promptitude of Spartans, our fellow-citizens
shouldered their firelocks, and in twenty-four hours I had the honor to
review three hundred and seventy-five men at Natches, prepared to defend
their country." Mead sent two aides to Burr, "who tendered his respects
to the civil authority." The Acting Governor himself then saw Burr,
whereupon the desperado actually "offered to surrender himself to the
civil authority of the Territory, and to suffer his boats to be
searched." This was done by "four gentlemen of unquestionable
respectability, with a detachment of thirty men." Burr readily went into
court and awaited trial.

"Thus, sir," concludes Governor Mead, "this mighty alarm, with all its
exaggeration, has eventuated in nine boats and one hundred men,[965] and
the major part of these are boys, or young men just from school," wholly
unaware of Burr's evil designs.[966]

The Legislature of the Territory of Orleans had just convened. Governor
Claiborne recommended that a law be passed suspending the writ of habeas
corpus. Behind closed doors the Representatives were harangued by
Wilkinson on the subject of the great conspiracy. All the old horrors
were again paraded to induce the legislators to support Wilkinson in his
lawless acts. Instead, that body denied the existence of treason in
Louisiana, expressed alarm at the "late privation" of the rights of
American citizens, and determined to investigate the "measures and
motives" of Wilkinson. A memorial to Congress was adopted, denouncing
"the acts of high-handed military power ... too notorious to be denied,
too illegal to be justified, too wanton to be excused," by which "the
temple of justice" had been "sacrilegiously rifled."[967]

In Mississippi, Burr calmly awaited his trial before the United States
Court of that Territory. Bail in the sum of five thousand dollars had
been furnished by Colonel Benijah Osmun and Lyman Harding, two
Revolutionary comrades of Burr, who years before had emigrated to
Mississippi and developed into wealthy planters. Colonel Osmun invited
Burr to be his guest. Having seen the ogre and talked with him, the
people of the neighborhood became Burr's enthusiastic friends.

Soon the grand jury was impaneled to investigate Burr's "crimes" and
indict him for them if a true bill could be found. This body outdid the
performance of the Kentucky grand jury nine weeks earlier. The grand
jurors asserted that, after examining the evidence, they were "of the
opinion that Aaron Burr has not been guilty of any crime or misdemeanor
against the laws of the United States or of this Territory or given any
just alarm or inquietude to the good people of this Territory." Worse
still followed--the grand jury formally presented as "a grievance" the
march of the militia against Burr, since there had been no prior
resistance by him to the civil authorities. Nor did the grand jurors
stop there. They also presented "as a grievance, destructive of personal
liberty," Wilkinson's military outrages in New Orleans.[968]

When the grand jury was dismissed, Burr asked to be discharged and his
sureties released from his bond. The judge was Thomas Rodney, the father
of Cæsar A. Rodney whom Jefferson soon afterward appointed
Attorney-General. Judge Rodney out-Wilkinsoned Wilkinson; he denied
Burr's request and ordered him to renew his bond or go to jail. This was
done despite the facts that the grand jury had refused to indict Burr
and that there was no legal charge whatever before the court.

Wilkinson was frantic lest Burr escape him. Every effort was made to
seize him; officers in disguise were sent to capture him,[969] and men
"armed with Dirks & Pistolls" were dispatched to assassinate him.[970]
Burr consulted Colonel Osmun and other friends, who advised him to keep
out of sight for a time. So he went into hiding, but wrote the Governor
that he would again come before the court when he could be assured of
being dealt with legally.

Thereupon the bond of five thousand dollars, which Judge Rodney had
compelled Burr to give, was declared forfeited and a reward of two
thousand dollars was offered for his apprehension. From his place of
retreat the harried man protested by letter. The Governor would not
relent. Wilkinson was raging in New Orleans. Illegal imprisonment,
probably death, was certain for Burr if he should be taken. His friends
counseled flight, and he acted on their judgment.[971]

But he would not go until he had seen his disconsolate followers once
more. Stealthily visiting his now unguarded flotilla, he told his men to
take for themselves the boats and provisions, and, if they desired, to
proceed to the Washita lands, settle there, and keep as much as they
wanted. He had stood his trial, he said, and had been acquitted; but now
he was to be taken by unlawful violence, and the only thing left for him
to do was to "flee from oppression."[972]

Colonel Osmun gave him the best horse in his stables. Clad "in an old
blanket-coat begirt with a leathern strap, to which a tin cup was
suspended on the left and a scalping knife on the right," Aaron Burr
rode away into the wilderness.

At ten o'clock of a rainy night, on the very day when Marshall delivered
his first opinion in the case of Bollmann and Swartwout, Burr was
recognized at a forest tavern in Washington County,[973] where he had
stopped to inquire the way to the house of Colonel Hinson, whom he had
met at Natchez on his first Western journey and who had invited Burr to
be his guest if he ever came to that part of the Territory. "Major"
Nicholas Perkins, a burly backwoods lawyer from Tennessee, penetrated
the disguise,[974] because of Burr's fine eyes and erect carriage.

Perkins hurried to the cabin of Theodore Brightwell, sheriff of the
county, and the two men rode after Burr, overtaking him at the residence
of Colonel Hinson, who was away from home and whose wife had prepared
supper for the wanderer. Brightwell went inside while Perkins remained
in the downpour watching the house from the bushes.

Burr so won the hearts of both hostess and sheriff that, instead of
arresting him, the officer proposed to guide the escaping criminal on
his way the next morning.[975] The drenched and shivering Perkins,
feeling that all was not right inside the cabin, hastened by horse and
canoe to Fort Stoddert and told Captain Edward P. Gaines of Burr's
whereabouts. With a file of soldiers the captain and the lawyer set off
to find and take the fugitive. They soon met him with the sheriff, who
was telling Burr the roads to follow.

Exclusively upon the authority of Jefferson's Proclamation, Burr was
arrested and confined in the fort. With quiet dignity, the "traitor"
merely protested and asked to be delivered to the civil courts. His
arrest was wholly illegal, he correctly said; let a judge and jury again
pass on his conduct. But seizure and incarceration by military force,
utterly without warrant of law, were a denial of fundamental
rights--rights which could not be refused to the poorest citizen or the
most abandoned criminal.[976]

Two weeks passed before Burr was sent northward. During this period all
within the stockades became his friends. The brother of Captain Gaines
fell ill and Burr, who among other accomplishments knew much about
medicine, treated the sick man and cheered him with gay conversation.
The soldiers liked Burr; the officers liked him; their wives liked him.
Everybody yielded to his strange attractiveness.

Two weeks after Marshall discharged Bollmann and Swartwout at
Washington, Burr was delivered by Captain Gaines to a guard of nine men
organized by Perkins; and, preceded and followed by them, he began the
thousand-mile journey to Washington. For days torrential rains fell;
streams were swollen; the soil was a quagmire. For hundreds of miles the
only road was an Indian trail; wolves filled the forest; savage Indians
were all about.[977] At night the party, drenched and chilled, slept on
the sodden earth. Burr never complained.

After ten days the first white settlements appeared. In two days more,
South Carolina was reached. The cautious Perkins avoided the larger
settlements, for Burr was popular in that State and his captor would run
no risks of a rescue. As the prisoner and his convoy were passing
through a village, a number of men were standing before a tavern. Burr
suddenly threw himself from his horse and cried: "I am Aaron Burr, under
military arrest, and claim the protection of the civil authorities."

Before any one could move, Perkins sprang to Burr's side, a pistol in
each hand, and ordered him to remount. Burr refused; and the gigantic
frontier lawyer lifted the slight, delicate prisoner in his hands, threw
him into his saddle, and the sorry cavalcade rode on, guards now on
either side, as well as before and behind their charge. Then, for the
first and last time in his life, Burr lost his composure, but only for a
moment; tears filled his eyes, but instantly recovering his
self-possession, he finished the remainder of that harrowing trip as
courteous, dignified, and serene as ever.[978]

At Fredericksburg, Virginia, Perkins received orders from the Government
to take his prisoner to Richmond instead of to Washington. John Randolph
describes the cavalcade: "Colonel Burr ... passed by my door the day
before yesterday under a strong guard.... To guard against enquiry as
much as possible he was accoutred in a shabby suit of homespun with an
old white hat flopped over his face, the dress in which he was
apprehended."[979]

In such fashion, when the candles were being lighted on the evening of
Thursday, March 26, 1807, Aaron Burr was brought into the Virginia
Capital, where, before a judge who could be neither frightened nor
cajoled, he was to make final answer to the charge of treason.

Burr remained under military guard until the arrival of Marshall at
Richmond. The Chief Justice at once wrote out,[980] signed, and issued a
warrant by virtue of which the desperate yet composed prisoner was at
last surrendered to the civil authorities, before whom he had so long
demanded to be taken.

During the noon hour on Monday, March 30, Marshall went to "a retired
room" in the Eagle Tavern. In this hostelry Burr was confined. Curious
citizens thronged the big public room of the inn and were "awfully
silent and attentive" as the pale and worn conspirator was taken by
Major Joseph Scott, the United States Marshal, and two deputies through
the quiet but hostile assemblage to the apartment where the Chief
Justice awaited him. To the disappointment of the crowd, the door was
closed and Aaron Burr stood before John Marshall.[981]

George Hay, the United States District Attorney, had objected to holding
even the beginning of the preliminary hearing at the hotel, because the
great number of eager and antagonistic spectators could not be present.
Upon the sentiment of these, as will be seen, Hay relied, even more than
upon the law and the evidence, to secure the conviction of the accused
man. He yielded, however, on condition that, if any discussion arose
among counsel, the proceedings should be adjourned to the Capitol.[982]

It would be difficult to imagine two men more unlike in appearance,
manner, attire, and characteristics, than the prisoner and the judge who
now confronted each other; yet, in many respects, they were similar.
Marshall, towering, ramshackle, bony, loose-jointed, negligently
dressed, simple and unconventional of manner; Burr, undersized and
erect, his apparel scrupulously neat,[983] his deportment that of the
most punctilious society. Outwardly, the two men resembled each other in
only a single particular: their eyes were as much alike as their persons
were in contrast.[984] Burr was fifty years of age, and Marshall was
less than six months older.

Both were calm, admirably poised and self-possessed; and from the
personality of each radiated a strange power of which no one who came
near either of them could fail to be conscious. Intellectually, also,
there were points of remarkable similarity. Clear, cold logic was the
outstanding element of their minds.

The two men had the gift of lucid statement, although Marshall indulged
in tiresome repetition while Burr never restated a point or an argument.
Neither ever employed imagery or used any kind of rhetorical display.
Notwithstanding the rigidity of their logic, both were subtle and
astute; it was all but impossible to catch either off his guard. But
Marshall gave the impression of great frankness; while about every act
and word of Burr there was the air of mystery. The feeling which Burr's
actions inspired, that he was obreptitious, was overcome by the
fascination of the man when one was under his personal influence; yet
the impression of indirectness and duplicity which he caused generally,
together with his indifference to slander and calumny,[985] made it
possible for his enemies, before his Western venture, to build up about
his name a structure of public suspicion, and even hatred, wholly
unjustified by the facts.

The United States District Attorney laid before Marshall the record in
the case of Bollmann and Swartwout in the Supreme Court, and Perkins
proudly described how he had captured Burr and brought him to Richmond.
Hay promptly moved to commit the accused man to jail on the charges of
treason and misdemeanor. The attorneys on both sides agreed that on this
motion there must be argument. Marshall admitted Burr to bail in the sum
of five thousand dollars for his appearance the next day at the
court-room in the Capitol.

When Marshall opened court the following morning, the room was crowded
with spectators, while hundreds could not find admittance. Hay asked
that the court adjourn to the House of Delegates, in order that as many
as possible of the throng might hear the proceedings. Marshall complied,
and the eager multitude hurried pell-mell to the big ugly hall, where
thenceforth court was held throughout the tedious, exasperating months
of this historic legal conflict.

Hay began the argument. Burr's cipher letter to Wilkinson proved that he
was on his way to attack Mexico at the time his villainy was thwarted by
the patriotic measures of the true-hearted commander of the American
Army. Hay insisted that Burr had intended to take New Orleans and "make
it the capital of his empire." The zealous young District Attorney "went
minutely into ... the evidence." The prisoner's stealthy "flight from
justice" showed that he was guilty.

John Wickham, one of Burr's counsel, answered Hay. There was no
testimony to show an overt act of treason. The alleged Mexican project
was not only "innocent, but meritorious"; for everybody knew that we
were "in an intermediate state between war and peace" with Spain. Let
Marshall recall Jefferson's Message to Congress on that point. If war
did not break out, Burr's expedition was perfectly suitable to another
and a wholly peaceful enterprise, and one which the President himself
had "recommended"--namely, "strong settlements beyond the
Mississippi."[986]

Burr himself addressed the court, not, he said, "to remedy any omission
of his counsel, who had done great justice to the subject," but "to
repel some observations of a personal nature." Treason meant deeds, yet
he was being persecuted on "mere conjecture." The whole country had been
unjustly aroused against him. Wilkinson had frightened the President,
and Jefferson, in turn, had alarmed the people.

Had he acted like a guilty man, he asked? Briefly and modestly he told
of his conduct before the courts and grand juries in Kentucky and
Mississippi, and the result of those investigations. The people among
whom he journeyed saw nothing hostile or treasonable in his expedition.

His "flight"? That had occurred only when he was denied the protection
of the laws and when armed men, under illegal orders of an autocratic
military authority, were seeking to seize him violently. Then, and only
then, acting upon the advice of friends and upon his own judgment, had
he "abandoned a country where the laws ceased to be the sovereign
power." Why had the guards who brought him from Alabama to Richmond
"avoided every magistrate on the way"? Why had he been refused the use
of pen, ink, and paper--denied even the privilege of writing to his
daughter? It was true that when, in South Carolina, the soldiers chanced
upon three civilians, he did indeed "demand the interposition of the
civil authority." Was that criminal? Was it not his right to seek to be
delivered from "military despotism, from the tyranny of a military
escort," and to be subjected only to "the operation of the laws of his
country"?[987]

On Wednesday, April 1, Marshall delivered the second of that series of
opinions which established the boundaries of the American law of treason
and rendered the trial of Aaron Burr as notable for the number and the
importance of decisions made from the bench during the progress of it,
as it was famous among legal duels in the learning, power, and eloquence
of counsel, in the influences brought to bear upon court and jury, and
in the dramatic setting and the picturesque incidents of the
proceedings.

Marshall had carefully written his opinion. At the close of court on the
preceding day, he had announced that he would do this in order "to
prevent any misrepresentations of expressions that might fall on him."
He had also assured Hay that, in case he decided to commit Burr, the
District Attorney should be heard at any length he desired on the
question of bail.

Thus, at the very beginning, Marshall showed that patience,
consideration, and prudence so characteristic of him, and so
indispensable to the conduct of this trial, if dangerous collisions with
the prevailing mob spirit were to be avoided. He had in mind, too, the
haughty and peremptory conduct of Chase, Addison, and other judges which
had given Jefferson his excuse for attacking the Judiciary, and which
had all but placed that branch of the Government in the absolute control
of that great practical genius of political manipulation. By the
gentleness of his voice and manner, Marshall lessened the excuse which
Jefferson was eagerly seeking in order again to inflame the passions of
the people against the Judiciary.

Proof strong enough to convict "on a trial in chief," or even to
convince the judge himself of Burr's guilt, was not, said Marshall,
necessary to justify the court in holding him for the action of the
grand jury; but there must be enough testimony "to furnish good reason
to believe" that Burr had actually committed the crimes with which he
stood charged.

Marshall quoted Blackstone to the effect that a prisoner could be
discharged only when it appeared that the suspicion against him was
"wholly groundless," but this did not mean that "the hand of malignity
may grasp any individual against whom its hate may be directed or whom
it may capriciously seize, charge him with some secret crime and put him
on the proof of his innocence."

Precisely that "hand of malignity," however, Burr was feeling by orders
of Jefferson. The partisans of the President instantly took alarm at
this passage of Marshall's opinion. Here was this insolent Federalist
Chief Justice, at the very outset of the investigation, presuming to
reflect upon their idol. Such was the indignant comment that ran among
the Republicans who packed the hall; and reflect upon the President,
Marshall certainly did, and intended to do.

The softly spoken but biting words of the Chief Justice were unnecessary
to the decision of the question before him; they accurately described
the conduct of the Administration, and they could have been uttered only
as a rebuke to Jefferson or as an attempt to cool the public rage that
the President had aroused. Perhaps both motives inspired Marshall's pen
when he wrote that statesmanlike sentence.[988]

On the whole, said Marshall, probable cause to suspect Burr guilty of an
attempt to attack the Spanish possessions appeared from Wilkinson's
affidavit; but the charge of treason was quite another matter. "As this
is the most atrocious offence which can be committed against the
political body, so it is the charge which is most capable of being
employed as the instrument of those malignant and vindictive passions
which may rage in the bosoms of contending parties struggling for
power." Treason is the only crime specifically mentioned in the
Constitution--the definition of all others is left to Congress. But the
Constitution itself carefully and plainly describes treason and
prescribes just how it must be proved.

Did the testimony show probable grounds for believing that Burr had
committed treason? Marshall analyzed the affidavits of Eaton and
Wilkinson, which constituted all of the "evidence" against Burr; and
although the whole matter had been examined by the Supreme Court in the
case of Bollmann and Swartwout, he nevertheless went over the same
ground again. No impatience, no hasty or autocratic action, no rudeness
of manner, no harshness of speech on his part should give politicians a
weapon with which once more to strike at judges and courts.

Where, asked Marshall, was the evidence that Burr had assembled an army
to levy war on the United States? Not before the court, certainly. Mere
"suspicion" was not to be ignored when means of proving the suspected
facts were not yet secured; but where the truth could easily have been
established, if it existed, and yet no proof of it had been brought
forward, everybody "must admit that the ministers of justice at least
ought not officially to entertain" unsupported conjectures or
assertions.

"The fact to be proved ... is an act of public notoriety. It must exist
in the view of the world, or it cannot exist at all.... Months have
elapsed since the fact did occur, if it ever occurred. More than five
weeks have elapsed since the ... supreme court has declared the
necessity of proving the fact, if it exists. Why is it not proved?" It
is, said Marshall, the duty of the Executive Department to prosecute
crimes. "It would be easy" for the Government "to procure affidavits"
that Burr had assembled troops five months ago. Certainly the court
"ought not to believe that there had been any remissness" on the part of
the Administration; and since no evidence had been presented that Burr
had gathered soldiers, "the suspicion, which in the first instance
might have been created, ought not to be continued, unless this want of
proof can be in some manner accounted for."

Marshall would, therefore, commit Burr for high misdemeanor, but not for
treason, and must, of consequence, admit the prisoner to bail. The Chief
Justice suggested the sum of ten thousand dollars as being "about
right."[989] Hay protested that the amount was too small. Burr "is here
among strangers," replied Wickham. He has fewer acquaintances in
Richmond than anywhere in the country. To be sure, two humane men had
saved the prisoner "from the horrors of the dungeon" when he arrived;
but the first bail was only for two days, while the present bail was for
an indefinite period. "Besides," asserted Wickham, "I have heard several
gentlemen of great respectability, who did not doubt that colonel Burr
would keep his recognisance, express an unwillingness to appear as bail
for him, lest it might be supposed they were enemies to their
country."[990]

Thus were cleverly brought into public and official view the conditions
under which this trial, so vital to American liberty, was to be held.
Burr was a "traitor," asserted Jefferson. "Burr a traitor!" echoed the
general voice. That all who befriended Burr were, therefore, also
"traitors at heart," was the conclusion of popular logic. Who dared
brave the wrath of that blind and merciless god, Public Prejudice? From
the very beginning the prosecution invoked the power of this avenging
and remorseless deity, while the defense sought to break that despotic
spell and arouse the spirit of opposition to the tyranny of it. These
facts explain the legal strategy of the famous controversy--a
controversy that continued throughout the sweltering months of the
summer and far into the autumn of 1807.

Hay declared that he had been "well informed that Colonel Burr could
give bail in the sum of one hundred thousand dollars." Gravely Burr
answered that there was serious doubt whether bail in any sum could be
procured; "gentlemen are unwilling to expose themselves to
animadversions" which would be the result of their giving bail for him.
He averred that he had no financial resources. "It is pretty well known
that the government has ordered my property seized, and that the order
has been executed." He had thus lost "upwards of forty thousand
dollars," and his "credit had consequently been much impaired."[991]

Marshall, unmoved by the appeals of either side, fixed the bail at ten
thousand dollars and adjourned court until three o'clock to enable Burr
to procure sureties for that amount. At the appointed hour the prisoner
came into court with five men of property who gave their bond for his
appearance at the next term of the United States Circuit Court, to be
held at Richmond on May 22.

For three precious weeks at least Aaron Burr was free. He made the best
of his time, although he could do little more than perfect the plans
for his defense. His adored Theodosia was in alternate rage and despair,
and Burr strove to cheer and steady her as best he might. Some of "your
letters," he writes, "indicate a sort of stupor"; in others "you rise
into phrenzy." He bids her come "back to reason.... Such things happen
in all democratic governments." Consider the "vindictive and unrelenting
persecution" of men of "virtue, ... independence and ... talents in
Greece and Rome." Let Theodosia "amuse" herself by collecting instances
of the kind and writing an essay on the subject "with reflections,
comments and applications." The perusal of it, he says, will give him
"great pleasure" if he gets it by the time court opens in May.[992]

Burr learned the names of those who were to compose the grand jury that
was to investigate his misdeeds. Among them were "twenty democrats and
four federalists," he informs his daughter. One of "the former is W. C.
Nicholas my vindictive ... personal enemy--the most so that could be
found in this state. The most indefatigable industry is used by the
agents of government, and they have money at command without stint. If I
were possessed of the same means, I could not only foil the prosecutors,
but render them ridiculous and infamous. The democratic papers teem with
abuse of me and my counsel, and even against the chief justice. Nothing
is left undone or unsaid which can tend to prejudice the public mind,
and produce a conviction without evidence. The machinations of this
description which were used against Moreau in France were treated in
this country with indignation. They are practiced against me in a still
more impudent degree, not only with impunity, but with applause; and the
authors and abettors suppose, with reason, that they are acquiring
favour with the administration."[993]

Every word of this was true. The Republican press blazed with
denunciation of "the traitor." The people, who had been led to believe
that the destruction of their "liberties" had been the object at which
Burr ultimately aimed, were intent on the death of their would-be
despoiler. Republican politicians were nervously apprehensive lest,
through Marshall's application of the law, Burr might escape and the
Administration and the entire Republican Party thereby be convicted of
persecuting an innocent man. They feared, even more, the effect on their
political fortunes of being made ridiculous.

Giles was characteristically alert to the danger. Soon after Marshall
had declined to commit Burr for treason and had released him under bail
to appear on the charge of misdemeanor only, the Republican leader of
the Senate, then in Virginia, wrote Jefferson of the situation.

The preliminary hearing of Burr had, Giles stated, greatly excited the
people of Virginia and probably would "have the same effect in all parts
of the United States." He urged the President to take "all measures
necessary for effecting ... a full and fair judicial investigation." The
enemies of the Administration had gone so far as to "suggest doubts" as
to the "measures heretofore pursued in relation to Burr," and had dared
to "intimate that the executive are not possessed of evidence to justify
those measures"--or, if there was such evidence, that the prosecution
had been "extremely delinquent in not producing it at the examination."
Nay, more! "It is even said that General Wilkinson will not be ordered
to attend the trial." That would never do; the absence of that militant
patriot "would implicate the character of the administration, more than
they can be apprised of."[994]

But Jefferson was sufficiently alarmed without any sounding of the
tocsin by his Senatorial agent. "He had so frightened the country ...
that to escape being overwhelmed by ridicule, he must get his prisoner
convicted of the fell designs which he had publically attributed to
him."[995] It is true that Jefferson did not believe Burr had committed
treason;[996] but he had formally declared to Congress and the country
that Burr's "guilt is placed beyond question," and, at any cost, he must
now make good that charge.[997]

From the moment that he received the news of Marshall's decision to hold
Burr for misdemeanor and to accept bail upon that charge, the
prosecution of his former associate became Jefferson's ruling thought
and purpose. It occupied his mind even more than the Nation's foreign
affairs, which were then in the most dangerous state.[998] Champion
though he was of equal rights for all men, yet any opposition to his
personal or political desires or interests appeared to madden him.[999]
A personal antagonism, once formed, became with Thomas Jefferson a
public policy.

He could see neither merit nor honesty in any act or word that appeared
to him to favor Burr. Anybody who intimated doubt of his guilt did so,
in Jefferson's opinion, for partisan or equally unworthy reasons. "The
fact is that the Federalists make Burr's cause their own, and exert
their whole influence to shield him," he asserted two days after
Marshall had admitted Burr to bail.[1000] His hatred of the National
Judiciary was rekindled if, indeed, its fires ever had died down. "It is
unfortunate that federalism is still predominant in our judiciary
department, which is consequently in opposition to the legislative &
Executive branches & is able to baffle their measures often," he
averred at the same time, and with reference to Marshall's rulings thus
far in the Burr case.

He pours out his feelings with true Jeffersonian bitterness and passion
in his answer to Giles's letter. No wonder, he writes, that "anxiety and
doubt" had arisen "in the public mind in the present defective state of
the proof." This tendency had "been sedulously encouraged by the tricks
of the judges to force trials before it is possible to collect the
evidence dispersed through a line of two thousand miles from Maine to
Orleans."

The Federalists too were helping Burr! These miscreants were "mortified
only that he did not separate the Union and overturn the government."
The truth was, declares Jefferson, that the Federalists would have
joined Burr in order to establish "their favorite monarchy" and rid
themselves of "this hated republic," if only the traitor had had "a
little dawn of success." Consider the inconsistent attitude of these
Federalists. Their first "complaint was the supine inattention of the
administration to a treason stalking through the land in the open light
of day; the present one, that they [the Administration] have crushed it
before it was ripe for execution, so that no overt acts can be proved."

Jefferson confides to Giles that the Government may not be able to
establish the commission of overt acts; in fact, he says, "we do not
know of a certainty yet what will be proved." But the Administration is
already doing its very best: "We have set on foot an inquiry through the
whole of the country which has been the scene of these transactions to
be able to prove to the courts, if they will give time, or to the public
by way of communication to Congress, what the real facts have
been"--this three months after Jefferson had asserted, in his Special
Message on the conspiracy, that Burr's "guilt is placed beyond
question."

In this universal quest for "the facts," the Government had no help from
the National courts, complains the President: "Aided by no process or
facilities from Federal Courts,[1001] but frowned on by their new-born
zeal for the liberty of those whom we would not permit to overthrow the
liberties of their country, we can expect no revealments from the
accomplices of the chief offender." But witnesses would be produced who
would "satisfy the world if not the judges" of Burr's treason. Jefferson
enumerates the "overt acts" which the Administration expected to
prove.[1002]

Marshall, of course, stood in the way, for it was plain that "the
evidence cannot be collected under 4 months, probably 5." Jefferson had
directed his Attorney-General, "unofficially," but "expressly," to
"inform the Chief Justice of this." With what result? "Mr. Marshall
says, 'more than 5 weeks have elapsed since the opinion of the Supreme
Court has declared the necessity of proving the overt acts if they
exist. Why are they not proved?' In what terms of decency," growls
Jefferson, "can we speak of this? As if an express could go to Natchez
or the mouth of the Cumberland and return in 5 weeks, to do which has
never taken less than twelve."

Jefferson cannot sufficiently criticize Marshall's opinion: "If, in Nov.
or Dec. last, a body of troops had assembled on the Ohio, it is
impossible to suppose the affidavits establishing the fact could not
have been obtained by the last of March," he quotes from Marshall's
ruling. "I ask the judge where they [the affidavits] should have been
lodged? At Frankfort? at Cincinnati? at Nashville? St. Louis?... New
Orleans?... Where? At Richmond he certainly meant, or meant only to
throw dust in the eyes of his audience."[1003]

As his pen flew over the burning page, Jefferson's anger grew.
Marshall's love of monarchy was at the bottom of his decision: "All the
principles of law are to be perverted which would bear on the favorite
offenders who endeavor to overrun this odious Republic."

Marshall's refinements as to proof required to establish probable cause
to believe Burr guilty, particularly irritated Jefferson. "As to the
overt acts, were not the bundle of letters of information in Mr.
Rodney's hands, the letters and facts published in the local newspapers,
Burr's flight, & the universal belief or rumor of his guilt, probable
ground for presuming the facts ... so as to put him on trial? Is there a
candid man in the U S who does not believe some one, if not all, of
these overt acts to have taken place?"

How dare Marshall require legal evidence when "letters, newspapers and
rumors" condemned Burr! How dare he, as a judge, not heed "the universal
belief," especially when that general public opinion had been
crystallized by Jefferson himself!

That Marshall was influenced by politics and was of a kidney with the
whole breed of National judges up to that time, Jefferson had not the
slightest doubt. "If there ever had been an instance in this or the
preceding administrations, of federal judges so applying principles of
law as to condemn a federal or acquit a republican offender, I should
have judged them in the present case with more charity."

But the conduct of the Chief Justice will be the final outrage which
will compel a great reform. "The nation will judge both the offender &
judges for themselves ... the people ... will see ... & amend the error
in our Constitution, which makes any branch independent of the
nation.... One of the great co-ordinate branches of the government,
setting itself in opposition to the other two, and to the common sense
of the nation, proclaims impunity to that class of offenders which
endeavors to overturn the Constitution, and are themselves protected in
it by the Constitution itself; for impeachment is a farce which will not
be tried again."

Thus Jefferson extracts some comfort from Marshall's refusal to obey
popular clamor and condemn on "rumor." If Marshall's "protection of Burr
produces this amendment,[1004] it will do more good than his
condemnation would have done. Against Burr, personally," audaciously
adds Jefferson, "I never had one hostile sentiment."[1005]

Such was the state of the President's mind when he learned of Marshall's
ruling on the Government's motion to commit Burr to jail upon the
charges of treason and high misdemeanor. Jefferson felt that he himself
was on trial; he knew that he must make good his charges or suffer a
decline in the popularity which he prized above all else in life. He
proposed that, at the very least, the public should be on his side, and
he resolved to exert the utmost efforts of the National Government to
bend Marshall to his will.

Thus the President of the United States became the leading counsel in
the prosecution of Aaron Burr, as well as the director-general of a
propaganda planned to confirm public opinion of Burr's treason, and to
discredit Marshall should his decisions from the bench result in the
prisoner's escape from the gallows.[1006] Jefferson ordered his
Attorney-General, Cæsar A. Rodney, to direct justices of the peace
throughout the country to examine everybody supposed to have any
knowledge of Burr, his plans, movements, or conversations. Long lists of
questions, designed to elicit replies that would convict Burr, were sent
to these officials on printed forms. A vast drag-net was spread over
almost the whole of the United States and drawn swiftly and
remorselessly to Washington.

The programme for the prosecution became the subject of anxious Cabinet
meetings, and the resources of every department of the Executive branch
of the Government were employed to overwhelm the accused man. Jefferson
directed Madison as Secretary of State "to take the necessary measures,"
including the advance of money for their expenses, to bring to Richmond
witnesses "from great distances."

Five thousand dollars, in a single warrant, was given to the
Attorney-General for use in supporting the Administration's case.[1007]
The total amount of the public money expended by Jefferson's orders to
secure Burr's conviction was $11,721.11, not a dollar of which had been
appropriated for that purpose. "All lawful expenses in the prosecution
of Burr were audited, and paid in full," under a law which provided for
the conduct of criminal cases; the sums spent by direction of the
President were in addition to the money dispensed by authority of that
law.[1008]

When Bollmann had been brought to Washington, he had read with rage and
amazement the newspaper accounts that Burr had led two thousand armed
men in a violent and treasonable attack upon the United States.
Accordingly, after Marshall released him from imprisonment, he hastened
to Jefferson and tried to correct what he declared to be "false
impressions" concerning Burr's treason. Bollmann also wished to convince
the President that war with Spain was desirable, and to get his support
of Burr's expedition. Jefferson, having taken the precaution to have the
Secretary of State present at the interview, listened with apparent
sympathy. The following day he requested Bollmann to write out and
deliver to him his verbal statements, "Thomas Jefferson giving him _his
word of honour_ that they should never be used against himself
[Bollmann] and _that the paper shall never go out of his_ [Jefferson's]
_hand_."[1009]

The confiding Bollmann did as the President requested, his whole paper
going "to disprove treason, and to show the expediency of war." Because
of unfamiliarity with the English language "one or two expressions" may
have been "improperly used."[1010] Bollmann's statement Jefferson now
transmitted to the District Attorney at Richmond, in order, said the
President, "that you may know how to examine him and draw everything
from him."

Jefferson ordered Hay to show the paper only to his associate counsel;
but, if Bollmann "should prevaricate," the President adds, "ask him
whether he did not say so and so to Mr. Madison and myself." The
President assures Hay that "in order to let him [Bollmann] see that his
prevarication will be marked, Mr. Madison will forward [Hay] a pardon
for him, which we mean should be delivered previously." Jefferson fears
that Bollmann may not appear as a witness and directs Hay to "take
effectual measures to have him immediately taken into custody."

Nor was this all. Three months earlier, Wilkinson had suggested to
Jefferson the base expedient of offering pardons to Burr's associates,
in order to induce them to betray him and thus make certain his
conviction.[1011] Apparently this crafty and sinister advice now
recurred to Jefferson's mind--at least he followed it. He enclosed a
sheaf of pardons and directed Hay to fill them out "at [his] discretion,
if [he] should find a defect of evidence, & believe that this would
supply it, by avoiding to give them to the gross offenders, unless it
be visible that the principal will otherwise escape."[1012]

In the same letter Jefferson also sent to Hay the affidavit of one Jacob
Dunbaugh, containing a mass of bizarre falsehoods, as was made plain
during the trial. Dunbaugh was a sergeant who had been arrested for
desertion and had been pardoned by Wilkinson on condition that he would
give suitable testimony against Burr. "If," continues Jefferson,
"General Wilkinson gets on in time,[1013] I expect he will bring
Dunbaugh with him. At any rate it [Dunbaugh's affidavit] may be a ground
for an arrest & committment for treason."

Vividly alive to the forces at work to doom him, Burr nevertheless was
not dismayed. As a part of his preparation for defense he exercised on
all whom he met the full power of his wonderful charm; and if ever a
human being needed friends, Aaron Burr needed them in the Virginia
Capital. As usual, most of those who conversed with him and looked into
his deep, calm eyes became his partisans. Gradually, a circle of men and
women of the leading families of Richmond gathered about him, supporting
and comforting him throughout his desperate ordeal.

Burr's attorneys were no longer merely his counsel performing their
professional duty; even before the preliminary hearing was over, they
had become his personal friends and ardent champions. They were ready
and eager to go into court and fight for their client with that
aggressiveness and enthusiasm which comes only from affection for a man
and a faith in his cause. Every one of them not only had developed a
great fondness for Burr, but earnestly believed that his enterprise was
praise-worthy rather than treasonable.

One of them, John Wickham, was a commanding figure in the society of
Richmond, as well as the leader of the Virginia bar at that time.[1014]
He was a close friend of Marshall and lived in an imposing house near
him. It was to Wickham that Marshall had left the conduct of his cases
in court when he went to France on the X. Y. Z. mission.

Dinners were then the principal form of social intercourse in Richmond,
and were constantly given. The more prominent lawyers were particularly
devoted to this pleasing method of cheer and relaxation. This custom
kept the brilliant bar of Richmond sweet and wholesome, and nourished
among its members a mutual regard, while discouraging resentments and
animosities. Much of that courtesy and deference shown to one another by
the lawyers of that city, even in the most spirited encounters in court,
was due to that esteem and fellowship which their practice of dining
together created.

Of the dispensers of such hospitality, Marshall and Wickham were the
most notable and popular. The "lawyer dinners" given by Marshall were
famous; and the tradition of them still casts a warm and exhilarating
glow. The dinners, too, of John Wickham were quite as alluring. The food
was as plentiful and as well prepared, the wines as varied, select, and
of as ancient vintage, the brandy as old and "sound," the juleps as
fragrant and seductive; and the wit was as sparkling, the table talk as
informing, the good humor as heartening. Nobody ever thought of
declining an invitation to the house of John Wickham.

All these circumstances combined to create a situation for which
Marshall was promptly denounced with that thoughtlessness and passion so
characteristic of partisanship--a situation that has furnished a handle
for malignant criticism of him to this day. During the interval between
the preliminary hearing and the convening of court in May, Wickham gave
one of his frequent and much-desired dinners. As a matter of course,
Wickham's intimate friend and next-door neighbor was present--no dinner
in Richmond ever was complete without the gentle-mannered,
laughter-loving John Marshall, with his gift for making everybody happy
and at ease. But Aaron Burr was also a guest.

Aaron Burr, "the traitor," held to make answer to charges for his
infamous crimes, and John Marshall, the judge before whom the miscreant
was to be tried, dining together! And at the house of Burr's chief
counsel! Here was an event more valuable to the prosecution than any
evidence or argument, in the effect it would have, if rightly employed,
on public opinion, before which Burr had been and was arraigned far more
than before the court of justice.

Full use was made of the incident. The Republican organ, the Richmond
_Enquirer_, promptly exposed and denounced it. This was done by means of
two letters signed "A Stranger from the Country," who "never had any,
the least confidence in the political principles of the chief
justice"--none in "that noble candor" and "those splendid ... even
god-like talents which many of all parties ascribe to him." Base as in
reality he was, Marshall might have "spared his country" the "wanton
insult" of having "feasted at the same convivial board with Aaron Burr."
What excuse was there for "conduct so grossly indecent"? To what motive
should Marshall's action be ascribed? "Is this charity, hypocracy, or
federalism?" Doubtless he "was not actuated by any corrupt motive," and
"was unapprised of the invitation of B."[1015] However, the fact is,
that the judge, the accused, and his attorney, were fellow guests at
this "treason rejoicing dinner."[1016]

Thus the great opinions of John Marshall, delivered during the trial of
Aaron Burr, were condemned before they were rendered or even formed.
With that lack of consideration which even democracies sometimes
display, the facts were not taken into account. That Marshall never
knew, until he was among them, who his fellow guests were to be; that
Wickham's dinner, except in the presence of Burr, differed in no respect
from those constantly given in Richmond; that Marshall, having arrived,
could do nothing except to leave and thus make the situation
worse;--none of these simple and obvious facts seemed to have occurred
to the eager critics of the Chief Justice.

That Marshall was keenly aware of his predicament there can be no doubt.
He was too good a politician and understood too well public whimsies and
the devices by which they are manipulated, not to see the consequences
of the innocent but unfortunate evening at Wickham's house. But he did
not explain; he uttered not a syllable of apology. With good-natured
contempt for the maneuvers of the politicians and the rage of the
public, yet carefully and coolly weighing every element of the
situation, John Marshall, when the appointed day of May came around, was
ready to take his seat upon the bench and to conduct the historic trial
of Aaron Burr with that kindly forbearance which never deserted him,
that canny understanding of men and motives which served him better than
learning, and that placid fortitude that could not be shaken.


FOOTNOTES:

[917] Plumer, Jan. 30, 1807, "Diary," Plumer MSS. Lib. Cong. Senator
Plumer adds: "The government are apprehensive that the arts & address of
_Bollman_, who effected the liberation of the Marquis de Lafayette from
the strong prison of Magdeburge, may now find means to liberate
himself."

[918] Clay to Prentiss, Feb. 15, 1807, _Priv. Corres._: Colton, 15; also
_Works_: Colton, IV, 14.

[919] Plumer, Feb. 20, 1807, "Register," Plumer MSS. Lib. Cong.

[920] Plumer to Mason, Jan. 30, 1807, Plumer MSS. Lib. Cong.

Plumer's account of the proceedings is trustworthy. He was an eminent
lawyer himself, was deeply interested in the case, and was writing to
Jeremiah Mason, then the leader of the New England bar.

[921] _Eaton_: Prentiss, 396.

[922] See _supra_, 303-05.

Three days before he made oath to the truth of this story, Eaton's claim
against the Government was referred to a committee of the House (see
_Annals_, 9th Cong. 2d Sess. 383), and within a month from the time the
historic affidavit was made, a bill was passed, without debate,
"authorizing the settlement of the accounts between the United States
and William Eaton."

John Randolph was suspicious: "He believed the bill had passed by
surprise. It was not so much a bill to settle the accounts of William
Eaton, as to rip up the settled forms of the Treasury, and to transfer
the accountable duties of the Treasury to the Department of State. It
would be a stain upon the Statute Book." (_Ib._ 622.)

The very next week after the passage of this measure, Eaton received ten
thousand dollars from the Government. (See testimony of William Eaton,
_Trials of Colonel Aaron Burr_: Robertson, stenographer, I, 483.)

[923] "Eaton's story ... has now been served up in all the
newspapers.... The amount of his narrative is, that he advised the
President to send Burr upon an important embassy, BECAUSE!!! he had
discovered the said Burr to be a _Traitor to his country_." (J. Q. Adams
to L. C. Adams, Dec. 8, 1806, _Writings, J. Q. A._: Ford, III, footnote
to 157.)

[924] Plumer, Jan. 30, 1807, "Diary," Plumer MSS. Lib. Cong.

[925] J. Q. Adams to his father, Jan. 30, 1807, _Writings, J. Q. A._:
Ford, III, 159.

[926] Feb. 28, 1801, _Journal Exec. Proc. Senate_, I, 387. Cranch was so
excellent a judge that, Federalist though he was, Jefferson reappointed
him February 21, 1806. (_Ib._ II, 21.)

[927] Jefferson appointed Nicholas Fitzhugh of Virginia, November 22,
1803 (_ib._ I, 458), and Allen Bowie Duckett of Maryland, February 28,
1806 (_ib._ II, 25).

[928] J. Q. Adams to his father, Jan. 27, 1807, _Writings, J. Q. A._:
Ford, III, 158.

[929] _Annals_, 9th Cong. 2d Sess. 44.

[930] On Friday afternoon the House adjourned till Monday morning.

[931] _Annals_, 9th Cong. 2d Sess. 402.

[932] _Annals_, 9th Cong. 2d Sess. 404-05.

[933] _Ib._ 410. Eppes was Jefferson's son-in-law.

[934] _Ib._ 412.

[935] _Ib._ 414-15.

[936] 4 Cranch, 76.

[937] 4 Cranch, 107. Justice Chase, who was absent because of illness,
concurred with Johnson. (Clay to Prentiss, Feb. 15, 1807, _Priv.
Corres._: Colton, 15; also _Works_: Colton, IV, 15.)

Cæsar A. Rodney, Jefferson's Attorney-General, declined to argue the
question of jurisdiction.

[938] 4 Cranch, 125-37.

[939] 4 Cranch, 125-26.

[940] 4 Cranch, 127.

[941] See _supra_, 303-05.

[942] 4 Cranch, 128-29.

[943] See Appendix D.

In his translation Wilkinson carefully omitted the first sentence of
Burr's dispatch: "Yours, post-marked 13th of May, is received." (Parton:
_Burr_, 427.) This was not disclosed until the fact was extorted from
Wilkinson at the Burr trial. (See _infra_, chap. VIII.)

[944] 4 Cranch, 131-32.

[945] 4 Cranch, 132-33.

[946] Wilkinson declared in his affidavit that he "drew" from Swartwout
the following disclosures: "Colonel Burr, with the support of a powerful
association, extending from New York to New Orleans, was levying an
armed body of seven thousand men from the state of New York and the
Western states and Territories" to invade Mexico which "would be
revolutionized, where the people were ready to join them."

"There would be some seizing, he supposed at New Orleans"; he "knew full
well" that "there were several millions of dollars in the bank of this
place," but that Burr's party only "meant to borrow and would return
it--they must equip themselves at New Orleans, etc., etc." (_Annals_,
9th Cong. 2d Sess. 1014-15.)

Swartwout made oath that he told Wilkinson nothing of the kind. The high
character which this young man then bore, together with the firm
impression of truthfulness he made on everybody at that time and during
the distracting months that followed, would seem to suggest the
conclusion that Wilkinson's story was only another of the brood of
falsehoods of which that fecund liar was so prolific.

[947] 4 Cranch, 133-34.

[948] 4 Cranch, 135.

[949] 4 Cranch, 136.

[950] Feb. 21, 1807, _Memoirs, J. Q. A._: Adams, I, 459.

[951] _Annals_, 9th Cong. 2d Sess. 472.

[952] _Ib._ 506.

[953] They are: "Article IV. The right of the people to be secure in
their persons, houses, papers and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall issue but
upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized.

"Article V. No person shall be held to answer for a capital or otherwise
infamous crime, unless on a presentment or indictment of a grand jury,
except in cases arising in the land or naval forces, or in the militia
when in actual service in time of war or public danger; nor shall any
person be subject for the same offence to be twice put in jeopardy of
life or limb; nor shall be compelled, in any criminal case, to be
witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for
public use without just compensation.

"Article VI. In all criminal prosecutions the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the state
and district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his
favour, and to have the assistance of counsel for his defence."

[954] _Annals_, 9th Cong. 2d Sess. 531.

[955] _Ib._ 532-33.

[956] _Ib._ 535.

[957] _Annals_, 9th Cong. 2d Sess. 536.

[958] _Ib._ 537-38.

[959] _Ib._ 589.

[960] Nearly all the men had been told that they were to settle the
Washita lands; and this was true, as far as it went. (See testimony of
Stephen S. Welch, Samuel Moxley, Chandler Lindsley, John Mulhollan, Hugh
Allen, and others, _Annals_, 10th Cong. 1st Sess. 463 _et seq._)

[961] The boats were very comfortable. They were roofed and had
compartments for cooking, eating, and sleeping. They were much like the
modern house boat.

[962] Bissel to Jackson, Jan. 5, 1807, _Annals_, 9th Cong. 2d Sess.
1017-18.

[963] Murrell to Jackson, Jan. 8, 1807, _Annals_, 9th Cong. 2d Sess.
1017.

[964] Mead to the Secretary of War, Jan. 13, 1807, _ib._ 1018.

[965] Burr had picked up forty men on his voyage down the Mississippi.

[966] Mead to the War Department, Jan. 19, 1807, _Annals_, 9th Cong. 2d
Sess. 1019.

[967] McCaleb, 233-36. For the discussion over this resolution see
_Debate in the House of Representatives of the Territory of Orleans, on
a Memorial to Congress, respecting the illegal conduct of General
Wilkinson_. Both sides of the question were fully represented. See also
Cox, 194, 200, 206-08.

[968] Return of the Mississippi Grand Jury, Feb. 3, reported in the
_Orleans Gazette_, Feb. 20, 1807, as quoted in McCaleb, 272-73.

[969] _Annals_, 10th Cong. 1st Sess. 528-29, 536, 658-61.

[970] Deposition of George Peter, Sept. 10, 1807, _Am. State Papers,
Misc._ I, 566; and see _Quarterly Pub. Hist. and Phil. Soc. of Ohio_,
IX, Nos. 1 and 2, 35-38; McCaleb, 274-75; Cox, 200-08.

[971] McCaleb, 277.

[972] _Ib._

[973] In that part of the Territory which is now the State of Alabama.

[974] Perkins had read and studied the description of Burr in one of the
Proclamations which the Governor of Mississippi had issued. A large
reward for the capture of Burr was also offered, and on this the mind of
Perkins was now fastened.

[975] Pickett: _History of Alabama_, 218-31.

[976] Yet, five months afterward, Jefferson actually wrote Captain
Gaines: "That the arrest of Colo. B. was military has been disproved;
but had it been so, every honest man & good citizen is bound, by any
means in his power, to arrest the author of projects so daring &
dangerous." (Jefferson to Gaines, July 23, 1807, _Works_: Ford, X, 473.)

[977] Pickett, 224-25.

[978] For the account of Burr's arrest and transfer from Alabama to
Richmond, see Pickett, 218-31. Parton adopts Pickett's narrative, adding
only one or two incidents; see Parton: _Burr_, 444-52.

[979] Randolph to Nicholson, March 25, 1807, Adams: _Randolph_, 220.

[980] The warrant was written by Marshall himself. (MS. Archives of the
United States Court, Richmond, Va.)

[981] _Burr Trials_, I, 1.

[982] _Burr Trials_, I, 1.

[983] The first thing that Burr did upon his arrival at Richmond was to
put aside his dirty, tattered clothing and secure decent attire.

[984] Marshall's eyes were "the finest ever seen, except Burr's, large,
black and brilliant beyond description. It was often remarked during the
trial, that two such pairs of eyes had never looked into one another
before." (Parton: _Burr_, 459.)

[985] It was a rule of Burr's life to ignore attacks upon him. (See
_supra_, 280.)

[986] _Burr Trials_, I, 5.

[987] _Burr Trials_, I, 6-8.

[988] At the noon hour "a friend" told the Chief Justice of the
impression produced, and Marshall hastened to forestall the use that he
knew Jefferson would make of it. Calling the reporters about him, he
"explicitly stated" that this passage in his opinion "had no allusion to
the conduct of the government in the case before him." It was, he
assured the representatives of the press, "only an elucidation of
Blackstone." (_Burr Trials_, I, footnote to 11.)

[989] _Burr Trials_, I, 11-18.

[990] _Ib._ 19.

[991] _Burr Trials_, I, 20. His "property," however, represented
borrowed money.

[992] Burr to his daughter, May 15, 1807, Davis, II, 405-06.

[993] Burr to his daughter, May 15, 1807, Davis, II, 405-06.

[994] Giles to Jefferson, April 6, 1807, Anderson, 110. The date is
given in Jefferson to Giles, April 20, 1807, _Works_: Ford, X, 383.

[995] Parton: _Burr_, 455.

[996] "Altho' at first he proposed a separation of the Western
country, ... yet he very early saw that the fidelity of the Western
country was not to be shaken and turned himself wholly towards Mexico
and so popular is an enterprize on that country in this, that we had
only to be still, & he could have had followers enough to have been in
the city of Mexico in 6. weeks." (Jefferson to James Bowdoin, U.S.
Minister to Spain, April 2, 1807, _Works_: Ford, X, 381-82.)

In this same letter Jefferson makes this amazing statement: "If we have
kept our hands off her [Spain] till now, it has been purely out of
respect for France.... We expect therefore from the friendship of the
emperor [Napoleon] that he will either compel Spain to do us justice, or
abandon her to us. We ask but one month to be in ... the city of
Mexico."

[997] McCaleb, 325.

[998] See _infra_, 476-77; also vol. IV, chap. I, of this work.

[999] See Nicholson to Monroe, April 12, 1807, Adams: _Randolph_,
216-18. Plumer notes "the rancor of his personal and political
animosities." (Plumer, 356.)

[1000] Jefferson to James Bowdoin, U.S. Minister to Spain, April 2,
1807, _Works_: Ford, X, 382.

[1001] This was flatly untrue. No process to obtain evidence or to aid
the prosecution in any way was ever denied the Administration. This
statement of the President was, however, a well-merited reflection on
the tyrannical conduct of the National judges in the trials of men for
offenses under the Sedition Law and even under the common law. (See
_supra_, chap. I.) But, on the one hand, Marshall had not then been
appointed to the bench and was himself against the Sedition Law (see
vol. II, chap. XI, of this work); and, on the other hand, Jefferson had
now become as ruthless a prosecutor as Chase or Addison ever was.

[1002] These were: "1. The enlistment of men in a regular way; 2. the
regular mounting of guard round Blennerhassett's island; ... 3. the
rendezvous of Burr with his men at the mouth of the Cumberland; 4. his
letter to the acting Governor of Mississippi, holding up the prospect of
civil war; 5. his capitulation, regularly signed, with the aides of the
Governor, as between two independent and hostile commanders."

[1003] The affidavits in regard to what happened on Blennerhassett's
island would necessarily be lodged in Richmond, since the island was in
Virginia and the United States Court for the District of that State
alone had jurisdiction to try anybody for a crime committed within its
borders.

Even had there been any doubt as to where the trial would take place,
the Attorney-General would have held the affidavits pending the
settlement of that point; and when the place of trial was determined
upon, promptly dispatched the documents to the proper district attorney.

[1004] The reference is to the amendment to the Constitution urged by
Jefferson, and offered by Randolph in the House, providing that a judge
should be removed by the President on the address of both Houses of
Congress. (See _supra_, chap. IV, 221.)

[1005] Jefferson to Giles, April 20, 1807, _Works_: Ford, X, 383-88.

[1006] See Parton: _Burr_, 456-57. "The real prosecutor of Aaron Burr,
throughout this business, was Thomas Jefferson, President of the United
States, who was made President of the United States by Aaron Burr's tact
and vigilance, and who was able therefore to wield against Aaron Burr
the power and resources of the United States." (_Ib._ 457.) And see
McCaleb, 361.

[1007] Jefferson to the Secretary of State, April 14, 1807, _Works_:
Ford, X, 383.

[1008] Jenkinson: _Aaron Burr_, 282-83.

[1009] Jefferson to "Bollman," Jan. 25, 1807, Davis, II, 388.

[1010] Bollmann's narrative, Davis, II, 389.

[1011] McCaleb, 331.

[1012] Jefferson to the United States District Attorney for Virginia,
May 20, 1807, _Works_: Ford, X, 394-401.

Bollmann, in open court, scornfully declined to accept the pardon. (See
_infra_, 452.)

[1013] Wilkinson was then _en route_ by sea to testify against Burr
before the grand jury.

[1014] Mordecai: _Richmond in By-Gone Days_, 68.

[1015] According to a story, told more than a century after the incident
occurred, Marshall did not know, when he accepted Wickham's invitation,
that Burr was to be a guest, but heard of that fact before the dinner.
His wife, thereupon, advised him not to go, but, out of regard for
Wickham, he attended. (Thayer: _John Marshall_, 80-81.)

This tale is almost certainly a myth. Professor Thayer, to whom it was
told by an unnamed descendant of Marshall, indicates plainly that he had
little faith in it.

The facts that, at the time, even the _Enquirer_ acquitted Marshall of
any knowledge that Burr was to be present; that the prudence of the
Chief Justice was admitted by his bitterest enemies; that so gross an
indiscretion would have been obvious to the most reckless; that
Marshall, of all men, would not have embarrassed himself in such
fashion, particularly at a time when public suspicion was so keen and
excitement so intense--render it most improbable that he knew that Burr
was to be at the Wickham dinner.

[1016] _Enquirer_, April 10 and 28, 1807.




CHAPTER VIII

ADMINISTRATION VERSUS COURT

    In substance Jefferson said that if Marshall should suffer Burr
    to escape, Marshall himself should be removed from office.
    (Henry Adams.)

    It becomes our duty to lay the evidence before the public. Go
    into any expense necessary for this purpose. (Jefferson.)

    The President has let slip the dogs of war, the hell-hounds of
    persecution, to hunt down my friend. (Luther Martin.)

    If you cannot exorcise the demon of prejudice, you can chain him
    down to law and reason. (Edmund Randolph.)


On May 22, 1807, the hall of the House of Delegates at Richmond was
densely crowded long before the hour of half-past twelve, when John
Marshall took his seat upon the bench and opened court. So occupied was
every foot of space that it was with difficulty that a passage was
opened through which the tall, awkwardly moving, and negligently clad
Chief Justice could make his way. By Marshall's side sat Cyrus Griffin,
Judge of the District Court, who throughout the proceedings was
negligible.

The closely packed spectators accurately portrayed the dress, manners,
and trend of thought of the American people of that period. Gentlemen in
elegant attire--hair powdered and queues tied in silk, knee breeches and
silver buckles, long rich cloth coats cut half away at the waist,
ruffled shirts and high stocks--were conspicuous against the background
of the majority of the auditors, whose apparel, however, was no less
picturesque.

This audience was largely made up of men from the smaller plantations,
men from the mountains, men from the backwoods, men from the frontiers.
Red woolen shirts; rough homespun or corduroy trousers, held up by
"galluses"; fringed deerskin coats and "leggings" of the same material
kept in place by leather belts; hair sometimes tied by strings in
uncouth queues, but more often hanging long and unconfined--in such garb
appeared the greater part of the attendance at the trial of Aaron Burr.
In forty years there had been but little change in the general
appearance of Virginians[1017] except that fewer wore the old dignified
and becoming attire of well-dressed men.

Nearly all of them were Republicans, plain men, devoted to Jefferson as
the exponent of democracy and the heaven-sent leader of the people.
Among these Jeffersonians, however, were several who, quite as much as
the stiffest Federalists, prided themselves upon membership in the
"upper classes."

Nearly all of the Republicans present, whether of the commonalty or the
gentry, were against Aaron Burr. Scattered here and there were a few
Federalists--men who were convinced that democracy meant the ruin of the
Republic, and who profoundly believed that Jefferson was nothing more
than an intriguing, malicious demagogue--most of whom looked upon Burr
with an indulgent eye. So did an occasional Republican, as now and then
a lone Federalist denounced Burr's villainy.

The good-sized square boxes filled with sand that were placed at
infrequent intervals upon the floor of the improvised court-room were
too few to receive the tobacco juice that filled the mouths of most of
the spectators before it was squirted freely upon the floor and wall.
Those who did not chew the weed either smoked big cigars and fat pipes
or contented themselves with taking snuff.[1018] Upon recess or
adjournment of court, all, regularly and without loss of time, repaired
to the nearest saloons or taverns and strengthened themselves, with
generous draughts of whiskey or brandy, taken "straight," for a firmer,
clearer grasp of the points made by counsel.

Never, in its history, had Richmond been so crowded with strangers.
Nearly five thousand people now dwelt in the Virginia Capital, the site
of which was still "untamed and broken" by "inaccessible heights and
deep ravines."[1019] Thousands of visitors had come from all over the
country to witness the prosecution of that fallen angel whose dark
deeds, they had been made to believe, had been in a fair way to destroy
the Nation. The inns could shelter but an insignificant fraction of
them, and few were the private houses that did not take in men whom the
taverns could not accommodate. Hundreds brought covered wagons or tents
and camped under the trees or on the river-banks near the city.
Correspondents of the press of the larger cities were present, among
them the youthful[1020] Washington Irving, who wrote one or two articles
for a New York paper.

[Illustration: _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 assassinate 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
Constitution "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
Constitutional 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 Washington 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 Constitution] 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 Constitution the rigid provision concerning treason were
forgotten by the now thoroughly partisanized multitude, if, indeed, the
people ever knew those reasons.

Moreover, every National judge who had passed upon the subject, with the
exception of John Marshall, had asserted the British doctrine of
constructive treason. Most of the small number who realized the cause
and real meaning of the American Constitutional provision as to treason
were overawed by the public frenzy; and brave indeed was he who defied
the popular passion 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 assemblage
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 championship 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 ...
assumed the shape of a political persecution."[1033]

The Administration retaliated by branding Andrew Jackson a "malcontent";
and Madison, because of Jackson's attitude, 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 massive 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
assured that, in making up his mind in any question which arose, he
would have that assistance 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 passionately 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 circumstances, 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 fashion, 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 assemblage.

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 documents 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 asserting 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.

His suspicions had been "very much excited" when Burr made his Western
journey, and he had openly stated his "uncommon anxiety" concerning "not
only the prosperity, but the union of the states." Therefore, he had not
desired to serve on the grand jury and had asked the marshal to excuse
him. He had finally consented solely from his delicate sense of public
duty. Also, said Nicholas, he had been threatened with the publication
of one of the "most severe pieces" against him if he served on the grand
jury; and this inclined him to "defy [his] enemies [rather] than to ask
their mercy or forbearance."

His friends had advised him not to make mention of this incident in
court; but, although he was "not scrupulous of acquiring, in this way, a
reputation of scrupulous delicacy," and had determined to heed the
counsel of his friends, still, he now found himself so confused that he
did not know just what he ought to do. On the whole, however, he thought
he would follow the example of Senator Giles and withdraw.[1049]

At that very moment, Nicholas was a Republican candidate for Congress
and, next to Giles, Jefferson's principal political agent in Virginia.
Four days after Burr had been brought to Richmond, Jefferson had written
Nicholas a letter of fulsome flattery "beseeching" him to return to the
National House in the place of the President's son-in-law, Thomas Mann
Randolph, who had determined to retire, and assuring him of the
Republican leadership if he would do so.[1050]

Thus, for a moment, was revealed a thread of that web of intrigue and
indirect influence which, throughout the trial, was woven to enmesh
judge, jury, and public. Burr was instantly upon his feet denouncing in
his quiet but authoritative manner the "attempt to intimidate" Nicholas
as "a contrivance of some of [his] enemies for the purpose of
irritating" the hot-blooded Republican politician "and increasing the
public prejudice against [Burr]; since it was calculated to throw
suspicion on [his] cause." Neither he nor his friends had ever
"sanctioned" such an act; they were wholly ignorant of it, and viewed it
"with indignation."[1051]

Mr. Joseph Eggleston, another of the grand jurors, now asked to be
excused because he had declared his belief of Burr's guilt; but he
admitted, in answer to Marshall's questions, that he could act justly in
the impending investigation. Burr said that he would not object to
Eggleston: "the industry which has been used through this country
[Virginia] to prejudice my cause, leaves me very little chance, indeed,
of an impartial jury." Eggleston's "candour ... in excepting to himself"
caused Burr to hope that he would "endeavour to be impartial." But let
Marshall decide--Burr would be "perfectly passive."[1052] The scrupulous
grand juror was retained.

John Randolph and Dr. William Foushee were then added to the grand jury
panel and Marshall appointed Randolph foreman.[1053] He promptly asked
to be excused because of his "strong prepossession." "Really," observed
Burr, "I am afraid we shall not be able to find any man without this
prepossession." Marshall again stated "that a man must not only have
formed but declared an opinion in order to excuse him from serving on
the jury." So Randolph was sworn as foreman, the oath administered to
all, and at last the grand jury was formed.[1054]

Marshall then instructed the jury, the substance of his charge being to
the same effect as his opinion in the case of Bollmann and Swartwout.
Burr asked the Chief Justice also to advise the men who were to decide
the question of his indictment "as to the admissability of certain
evidence" which he supposed Hay would lay before them. The District
Attorney objected to any favor being shown Burr, "who," he declared,
"stood on the same footing with every other man charged with crime."

For once Burr unleashed his deep but sternly repressed feeling: "Would
to God," he cried, his voice vibrant with emotion, "that I did stand on
the same ground with every other man. This is the first time [since the
military seizure] that I have been permitted to enjoy the rights of a
citizen. How have I been brought hither?" Marshall checked this
passionate outburst: it was not proper, he admonished both Hay and Burr,
to "go into these digressions."

His composure restored, Burr insisted that he should be accorded "the
same privileges and rights which belonged to every other citizen." He
would not now urge his objections to Marshall's opinion in the
Bollmann-Swartwout case;[1055] but he pointed out "the best informed
juryman might be ignorant of many points ... relating to testimony, ...
for instance, as to the article of papers," and he wished Marshall to
inform the jury on these matters of law.

A brief, sharp debate sprang up, during which Burr's counsel spoke of
the "host of prejudices raised against [their] client," taunted Hay with
his admission "that there was no man who had not formed an opinion," and
denounced "the activity of the Government."[1056] Upon Hay's pledging
himself that he would submit no testimony to the grand jury "without
notice being first given to Colonel Burr and his counsel," Marshall
adjourned the court that the attorneys might prepare for "further
discussion." The Government was not ready to present any testimony on
either the following day or on Monday because its principal witness,
General Wilkinson, had not arrived.

Hay now sent Jefferson his first report of the progress of the case.
Burr had steadily been making friends, and this irritated the District
Attorney more than the legal difficulties before him. "I am surprised,
and afflicted, when I see how much, and by how many, this man has been
patronised and supported." Hay assured Jefferson, however, that he would
"this day move to commit him for treason."[1057] Accordingly, he
announced in the presence of the grand jury that he would again ask the
court to imprison Burr on that accusation. In order, he said, that the
impropriety of mentioning the subject in their presence might be made
plain, Burr moved that the grand jury be withdrawn. Marshall sustained
the motion; and after the grand jury had retired, Hay formally moved the
court to order Burr's incarceration upon the charge of treason.[1058]

Burr's counsel, surprised and angered, loudly complained that no notice
had been given them. With a great show of generosity, Hay offered to
delay his motion until the next day. "Not a moment's postponement,"
shouted Botts, his fighting nature thoroughly aroused. Hay's
"extraordinary application," he said, was to place upon the court the
functions of the grand jury. Burr wanted no delay. His dearest wish was
to "satisfy his country ... and even his prosecutors, that he is
innocent." Was ever a man so pursued? He had been made the victim of
unparalleled military despotism; his legal rights had been ignored; his
person and papers unlawfully seized. The public had been excited to
anger. Through newspaper threats and "popular clamor" attempts had been
made to intimidate every officer of the court. Consider "the multitude
around us"--they must not be further infected "with the poison already
too plentifully infused."

Did Hay mean to "open the case more fully?" inquired Marshall. No,
answered Hay; but Wilkinson's arrival in Virginia might be announced
before he reached Richmond. Who could tell the effect on Burr of such
dread tidings? The culprit might escape; he must be safely held.[1059]
"The bets were against Burr that he would abscond, should W. come to
Richmond."[1060]

If Wilkinson is so important a witness, "why is he not here?" demanded
Wickham. Everybody knew that "a set of busy people ... are laboring to
ruin" Burr. "The press, from one end of the continent to the other, has
been enlisted ... to excite prejudices" against him. Let the case be
decided upon "the evidence of sworn witnesses" instead of "the floating
rumours of the day."

Did the Government's counsel wish that "the multitude around us should
be prejudiced by garbled evidences?" Wickham avowed that he could not
understand Hay's motives, but of this he was sure--that if, thereafter,
the Government wished to oppress any citizen, drag him by military force
over the country, prejudice the people against him, it would "pursue the
very same course which has now been taken against colonel Burr." The
prosecution admitted that it had not enough evidence to lay before the
grand jury, yet they asked to parade what they had before the court.
Why?--"to nourish and keep alive" the old prejudices now growing
stale.[1061]

Wirt answered at great length. He understood Wickham's purpose, he said.
It was to "divert the public attention from Aaron Burr," and "shift the
popular displeasure ... to another quarter." Wickham's speech was not
meant for the court, exclaimed Wirt, but for "the people who surround
us," and so, of course, Marshall would not heed it. Burr's counsel
"would convert this judicial inquiry into a political question ...
between Thomas Jefferson and Aaron Burr."

Not to be outdone by his gifted associate, Hay poured forth a stream of
words: "Why does he [Burr] turn from defending himself to attack the
administration?" he asked. He did not answer his own question, but
Edmund Randolph did: "An order has been given to treat colonel Burr as
an outlaw, and to burn and destroy him and his property." Jefferson,
when requested, had furnished the House information;--"would to God he
had stopped here, as an executive officer ought to have done!" But
instead he had also pronounced Burr guilty--an opinion calculated to
affect courts, juries, the people. Wickham detailed the treatment of
Burr, "the only man in the nation whose rights are not secure from
violation."[1062]

Burr himself closed this unexpected debate, so suddenly thrust upon his
counsel and himself. His speech is a model of that simple, perspicuous,
and condensed statement of which he was so perfectly the master. He
presented the law, and then, turning to Hay, said that two months
previous the District Attorney had declared that he had enough evidence
to justify the commitment, and surely he must have it now. Nearly half a
year had elapsed since Jefferson had "declared that there was a crime,"
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 nobody 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
"harrassing, ... 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
constitutes 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 shield 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, pronounce 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 circumstances 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
Washington, 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 circumstances." 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 class, 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, Blennerhassett'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.
Blennerhassett had sent him to Kentucky with a letter to Burr warning
him not to return to the island; that Burr was surprised at the people's
hostility; that Blennerhassett, who was also in Kentucky, confided they
were going to take Mexico and make Burr king, and Theodosia queen when
her father died; also that Burr, Blennerhassett, and their friends had
bought "eight hundred thousand acres of land" and "wanted young men to
settle it," and that any of these who should prove refractory, he
[Blennerhassett] said, "by God, ... I will stab"; that Blennerhassett
had also said it would be a fine thing to divide the Union, but Burr and
himself could not do it alone.

Taylor further testified that Blennerhassett once sent him with a letter
to a Dr. Bennett, who lived in Ohio, proposing to buy arms in his charge
belonging to the United States--if Bennett could not sell, he was to
tell where they were, and Blennerhassett "would steal them away in the
night"; that his employer charged him "to get [the letter] back and burn
it, for it contained high treason"; and that the faithful Taylor had
done this in Bennett's presence.

Taylor narrated the scene on the island when Blennerhassett and thirty
men in four boats fled in the night: some of the men had guns and there
was some powder and lead.[1076]

Jacob Allbright told a tale still more marvelous. Soon after his
employment, Mrs. Blennerhassett had come to this dull and ignorant
laborer, while he was working on a kiln for drying corn, and confided to
him that Burr and her husband "were going to lay in provisions for an
army for a year"; that Blennerhassett himself had asked Allbright to
join the expedition which was going "to settle a new country." Two men
whom the Dutch laborer met in the woods hunting had revealed to him that
they were "Burr's men," and had disclosed that "they were going to take
a silver mine from the Spanish"; that when the party was ready to leave
the island, General Tupper of Ohio had "laid his hands upon
Blennerhassett and said, 'your body is in my hands in the name of the
commonwealth,'" whereupon "seven or eight muskets [were] levelled" at
the General; that Tupper then observed he hoped they would not shoot,
and one of the desperadoes replied, "I'd as lieve as not"; and that
Tupper then "changed his speech," wished them "to escape safe," and bade
them Godspeed.

Allbright and Taylor were two of the hundreds to whom the Government's
printed questions had been previously put by agents of the
Administration. In his answers to these, Allbright had said that the
muskets were pointed at Tupper as a joke.[1077] Both Taylor and he swore
that Burr was not on the island when Blennerhassett's men assembled
there and stealthily departed in hasty flight.

To the reading of the deposition of Jacob Dunbaugh, Burr's counsel
strenuously objected. It was not shown that Dunbaugh himself could not
be produced; the certification of the justice of the peace, before whom
the deposition was taken, was defective. For the remainder of the day
the opposing lawyers wrangled over these points. Marshall adjourned
court and "took time to consider the subject till the next day"; when,
in a long and painfully technical opinion, he ruled that Dunbaugh's
affidavit could not be admitted because it was not properly
authenticated.[1078]

May 28, when the court again convened, was made notable by an event
other than the reading of the unnecessarily long opinion which Marshall
had written during the night: the crimson-faced, bellicose superman of
the law, Luther Martin, appeared as one of Burr's counsel.[1079] The
great lawyer had formed an ardent admiration and warm friendship for
Burr during the trial of the Chase impeachment,[1080] and this had been
intensified when he met Theodosia, with whom he became infatuated.[1081]
He had voluntarily come to his friend's assistance, and soon threw
himself into the defense of Burr with all the passion of his tempestuous
nature and all the power and learning of his phenomenal intellect.

[Illustration: LUTHER MARTIN]

After vexatious contendings by counsel as to whether Burr should give
additional bail,[1082] Marshall declared that "as very improper effects
on the public mind [might] be produced," he wished that no opinion would
be required of him previous to the action of the grand jury; and
that the "appearance of colonel Burr could be secured without ...
proceeding in this inquiry." Burr denied the right of the court to hold
him on bail, but said that if Marshall was "embarrassed," he voluntarily
would furnish additional bail, "provided it should be understood that no
opinion on the question even of probable cause was pronounced by the
court."[1083] Marshall agreed; and Burr with four sureties, among whom
was Luther Martin, gave bond for ten thousand dollars more.[1084]

Day after day, court, grand jury, counsel, and spectators awaited the
coming of Wilkinson. The Government refused to present any testimony to
the grand jury until he arrived, although scores of witnesses were
present. Andrew Jackson was very much in town, as we have seen. So was
Commodore Truxtun. And "General" William Eaton was also on hand,
spending his time, when court was not in session, in the bar-rooms of
Richmond.

Wearing a "tremendous hat," clad in gay colored coat and trousers, with
a flaming Turkish belt around his waist, Eaton was already beginning to
weaken the local hatred of Burr by his loud blustering against the
quiet, courteous, dignified prisoner.[1085] Also, at gambling-tables,
and by bets that Burr would be convicted, the African hero was making
free with the ten thousand dollars paid him by the Government soon after
he made the bloodcurdling affidavit[1086] with which Jefferson had so
startled Congress and the country.

While proceedings lagged, Marshall enjoyed the dinners and parties that,
more than ever, were given by Richmond society. On one of these
occasions that eminent and ardent Republican jurist, St. George Tucker,
was present, and between him and Marshall an animated discussion grew
out of the charge that Burr had plotted to cause the secession of the
Western States; it was a forecast of the tremendous debate that was to
end only at Appomattox. "Judge Tucker, though a violent Democrat,"
records Blennerhassett, "seriously contended ... with Judge Marshall ...
that any State in the Union is at any time competent to recede from the
same, though Marshall strongly opposed this doctrine."[1087]

Hay wrote Jefferson of the slow progress of the case, and the President
"hastened" to instruct his district attorney: If the grand jury should
refuse to indict Burr, Hay must not deliver the pardon to Bollmann;
otherwise, "his evidence is deemed entirely essential, & ... his pardon
is to be produced before he goes to the book." Jefferson had become more
severe as he thought of Bollmann, and now actually directed Hay to show,
in open court, to this new object of Presidential displeasure, the
"sacredly confidential" statement given Jefferson under pledge of the
latter's "word of honor" that it should never leave his hand. Hay was
directed to ask Bollmann whether "it was not his handwriting."[1088]

With the same ink on his pen the President wrote his son-in-law that he
had heard only of the first day of the trial, but was convinced that
Marshall meant to do all he could for Burr. Marshall's partiality
showed, insisted Jefferson, "the original error of establishing a
judiciary independent of the nation, and which, from the citadel of the
law can turn it's guns on those they were meant to defend, & controul &
fashion their proceedings to it's own will."[1089]

Hay quickly answered Jefferson: The trial had "indeed commenced under
inauspicious circumstances," and doubtless these would continue to be
unfavorable. Nobody could predict the outcome. Hay was so exhausted and
in such a state of mind that he could not describe "the very
extraordinary occurrences in this very extraordinary examination."
Burr's "partizans" were gloating over the failure of Wilkinson to
arrive. Bollmann would neither accept nor reject the pardon; he was "as
unprincipled as his leader." Marshall's refusal to admit Dunbaugh's
affidavit was plainly illegal--"his eyes [were] almost closed" to
justice.[1090]

Jefferson now showered Hay with orders. The reference in argument to
Marshall's opinion in Marbury _vs._ Madison greatly angered him:
"Stop ... citing that case as authority, and have it denied to be law,"
he directed Hay, and gave him the arguments to be used against it. An
entire letter is devoted to this one subject: "I have long wished for a
proper occasion to have the gratuitous opinion in Marbury v. Madison
brought before the public, & denounced as not law; & I think the present
a fortunate one, because it occupies such a place in the public
attention."

Hay was openly to declare that the President rejected Marshall's opinion
in that case as having been "given extra-judicially & against law," and
that the reverse of it would be Jefferson's "rule of action." If
necessary, Hay might state that the President himself had said
this.[1091]

Back and forth went letters from Hay to Jefferson and from Jefferson to
Hay,[1092] the one asking for instructions and the other eagerly
supplying them. To others, however, the President explained that he
could take no part in any judicial proceeding, since to do so would
subject him to "just censure."[1093]

In spite of the abundance of Government witnesses available, the
prosecution refused to go on until the redoubtable savior of his country
had arrived from New Orleans. Twice the grand jury had to be dismissed
for several days, in order, merrily wrote Washington Irving, "that they
might go home, see their wives, get their clothes washed, and flog their
negroes."[1094] A crowd of men ready to testify was held. The swarms of
spectators waited with angry impatience. "If the great hero of the South
does not arrive, it is a chance if we have any trial this term,"[1095]
commented Irving.

During this period of inaction and suspense, suddenly arose one of the
most important and exciting questions of the entire trial. On June 9,
while counsel and court were aimlessly discussing Wilkinson's journey to
Richmond, Burr arose and said that he had a "proposition to submit" to
the court. The President in his Message to Congress had made mention of
the letter and other papers dated October 21, which he had received from
Wilkinson. It had now become material that this letter should be
produced in court.

Moreover, since the Government had "attempted to infer certain
intentions on [his] part, from certain transactions," such as his flight
from Mississippi, it had become necessary to prove the conditions that
forced him to attempt that escape. Vital among these were orders of the
Government to the army and navy "to destroy" Burr's "person and
property." He had seen these orders in print,[1096] and an officer had
assured him that such instructions had actually been issued. It was
indispensable that this be established. The Secretary of the Navy had
refused to allow him or his counsel to inspect these orders. "Hence,"
maintained Burr, "I feel it necessary ... to call upon [the court] to
issue a subpoena to the President of the United States, with a clause,
requiring him to produce certain papers; or in other words, to issue the
subpoena _duces tecum_." If Hay would agree to produce these
documents, the motion would not be made.[1097]

Hay was sadly confused. He would try to get all the papers wanted if
Marshall would say that they were material. How, asked Marshall, could
the court decide that question without inspecting the papers? "Why ...
issue a subpoena to the President?" inquired Hay. Because, responded
Marshall, "in case of a refusal to send the papers, the officer himself
may be present to show cause. This subpoena is issued only where fears
of this sort are entertained."

Counsel on both sides became angry. Hay denied the authority of the
court to issue such a writ. Marshall called for argument, because, he
said, "I am not prepared to give an opinion on this point."[1098] Thus
arose the bitter forensic struggle that preceded Marshall's historic
order to Jefferson to come into court with the papers demanded, or to
show cause why he should not do so.

Hay instantly dispatched the news to Jefferson; he hoped the papers
would be "forwarded without delay," because "detention of them will
afford [Burr] pretext for clamor." Besides, "L. Martin has been here a
long time, perfectly inactive"; he was yearning to attack Jefferson and
this would "furnish a topic."[1099]

The President responded with dignified caution: "Reserving the necessary
right of the President of the U S to decide, independently of all other
authority, what papers, coming to him as President, the public interests
permit to be communicated, & to whom, I assure you of my readiness under
that restriction, voluntarily to furnish on all occasions, whatever the
purposes of justice may require." He had given the Wilkinson letter, he
said, to the Attorney-General, together with all other documents
relating to Burr, and had directed the Secretary of War to search the
files so that he (Jefferson) could "judge what can & ought to be done"
about sending any order of the Department to Richmond.[1100]

When Marshall opened court on June 10, Burr made affidavit that the
letters and orders might be material to his defense. Hay announced that
he had written Jefferson to send the desired papers and expected to
receive them within five days. They could not, however, be material, and
he did not wish to discuss them. Martin insisted that the papers be
produced. Wickham asked what Hay was trying to do--probably trying to
gain time to send to Washington for instructions as to how the
prosecution should now act.

Was not "an accused man ... to obtain witnesses in his behalf?" Never
had the denial of such a right been heard of "since the declaration of
American Independence." The despotic treatment of Burr called aloud not
only for the court's protection of the persecuted man, but "to the
protection of every citizen in the country as well."[1101] So it seemed
to that discerning fledgling author, Washington Irving. "I am very much
mistaken," he wrote, "if the most underhand ... measures have not been
observed toward him. He, however, retains his serenity."[1102]

Luther Martin now took the lead: Was Jefferson "a kind of sovereign?"
No! "He is no more than a servant of the people." Yet who could tell
what he would do? In this case his Cabinet members, "under presidential
influence," had refused copies of official orders. In another case "the
officers of the government screened themselves ... under the sanction of
the president's name."[1103] The same might be done again; for this
reason Burr applied "directly to the president." The choleric legal
giant from Maryland could no longer restrain his wrath: "This is a
peculiar case," he shouted. "The president has undertaken to prejudice
my client by declaring, that 'of his guilt there can be no doubt.' He
has assumed to himself the knowledge of the Supreme Being himself, and
pretended to search the heart of my highly respected friend. He has
proclaimed him a traitor in the face of that country, which has rewarded
him. He has let slip the dogs of war, the hell-hounds of persecution, to
hunt down my friend."

"And would this president of the United States, who has raised all this
absurd clamor, pretend to keep back the papers which are wanted for this
trial, where life itself is at stake?" That was a denial of "a sacred
principle. Whoever withholds, wilfully, information that would save the
life of a person, charged with a capital offence, is substantially a
murderer, and so recorded in the register of heaven." Did Jefferson want
Burr convicted? Impossible thought! "Would the president of the United
States give his enemies ... the proud opportunity of saying that colonel
Burr is the victim of anger, jealousy and hatred?" Interspersed with
these outbursts of vitriolic eloquence, Martin cited legal authorities.
Never, since the days of Patrick Henry, had Richmond heard such a
defiance of power.[1104]

Alexander MacRae did his best to break the force of Martin's impetuous
attack. The present question was "whether this court has the right to
issue a subpoena _duces tecum_, addressed to the president of the
United States." MacRae admitted that "a subpoena may issue against him
as well as against any other man." Still, the President was not bound to
disclose "confidential communications." Had not Marshall himself so
ruled on that point in the matter of Attorney-General Lincoln at the
hearing in Marbury _vs._ Madison?[1105]

Botts came into the fray with his keen-edged sarcasm. Hay and Wirt and
MacRae had "reprobated" the action of Chase when, in the trial of
Cooper, that judge had refused to issue the writ now asked for; yet now
they relied on that very precedent. "I congratulate them upon their
dereliction of the old democratic opinions."[1106]

Wirt argued long and brilliantly. What were the "orders," military and
naval, which had been described so thrillingly? Merely to "apprehend
Aaron Burr, and _if ... necessary ... to destroy his boats_." Even the
"sanguinary and despotic" orders depicted by Burr and his counsel would
have been a "great and glorious virtue" if Burr "was aiming a blow at
the vitals of our government and liberty." Martin's "fervid language"
had not been inspired merely by devotion to "his honourable friend,"
said Wirt. It was the continued pursuit of a "policy settled ... before
Mr. Martin came to Richmond." Burr's counsel, on the slightest pretext,
"flew off at a tangent ... to launch into declamations against the
government, exhibiting the prisoner continually as a persecuted patriot:
a Russell or a Sidney, bleeding under the scourge of a despot, and dying
for virtue's sake!"

He wished to know "what gentlemen can intend, expect, or hope, from
these perpetual philippics against the government? Do they flatter
themselves that this court feel political prejudices which will supply
the place of argument and of innocence on the part of the prisoner?
Their conduct amounts to an insinuation of the sort." What would a
foreigner "infer from hearing ... the judiciary told that the
administration are 'blood hounds,' hunting this man with a keen and
savage thirst for blood," and witnessing the court receive this language
"with all complacency?" Surely no conclusion could be made very
"honourable to the court. It would only be inferred, while they are thus
suffered to roll and luxuriate in these gross invectives against the
administration, that they are furnishing the joys of a Mahomitan
paradise to the court as well as to their client."[1107]

Here was as bold a challenge to Marshall as ever Erskine flung in the
face of judicial arrogance; and it had effect. Before adjourning court,
Marshall addressed counsel and auditors: he had not interfered with
assertions of counsel, made "in the heat of debate," although he had not
approved of them. But now that Wirt had made "a pointed appeal" to the
court, and the Judges "had been called upon to support their own
dignity, by preventing the government from being abused," he would
express his opinion. "Gentlemen on both sides had acted improperly in
the style and spirit of their remarks; they had been to blame in
endeavoring to excite the prejudices of the people; and had repeatedly
accused each other of doing what they forget they have done themselves."
Marshall therefore "expressed a wish that counsel ... would confine
themselves on every occasion to the point really before the court; that
their own good sense and regard for their characters required them to
follow such a course." He "hoped that they would not hereafter deviate
from it."[1108]

His gentle admonition was scarcely heeded by the enraged lawyers.
Wickham's very "tone of voice," exclaimed Hay, was "calculated to excite
irritation, and intended for the multitude." Of course, Jefferson
_could_ be subpoenaed as a witness; that was in the discretion of the
court. But Marshall ought not to grant the writ unless justice required
it. The letter might be "of a private nature"; if so, it ought not to be
produced. Martin's statement that Burr had a right to resist was a
"monstrous ... doctrine which would have been abhorred even in the most
turbulent period of the French revolution, by the jacobins of 1794!"

Suppose, said Hay, that Jefferson had been "misled," and that "Burr was
peaceably engaged in the project of settling his Washita lands!" Did
that give him "a right to resist the president's orders to stop him?"
Never! "This would be treason." The assertion of the right to disobey
the President was the offspring of "a new-born zeal of some of the
gentlemen, in defence of the rights of man."[1109]

Why await the arrival of Wilkinson? asked Edmund Randolph. What was
expected of "that great accomplisher of all things?" Apparently this:
"He is to support ... the _sing-song_ and the ballads of treason and
conspiracy, which we have heard delivered from one extremity of the
continent to the other. The funeral pile of the prosecution is already
prepared by the hands of the public attorney, and nothing is wanting to
kindle the fatal blaze but the torch of James Wilkinson," who "is to
officiate as the high priest of this human sacrifice.... Wilkinson will
do many things rather than disappoint the wonder-seizing appetite of
America, which for months together he has been gratifying by the most
miraculous actions." If Burr were found guilty, Wilkinson would stand
acquitted; if not, then "the character, the reputation, every thing ...
will be gone for ever from general Wilkinson."

Randolph's speech was a masterpiece of invective. "The President
testifies, that Wilkinson has testified to him fully against Burr; then
let that letter be produced. The President's declaration of Burr's guilt
is unconstitutional." It was not the business of the President "to give
opinions concerning the guilt or innocence of any person." Directly
addressing Marshall, Randolph continued: "With respect to your
exhortation," that Burr's appeal was to the court alone, "we demand
justice only, and if you cannot exorcise the demon of prejudice, you can
chain him down to law and reason, and then we shall have nothing to
fear."[1110]

The audacious Martin respected Marshall's appeal to counsel even less
than Hay and Randolph had done. The prosecution had objected to the
production of Wilkinson's mysterious letter to Jefferson because it
might contain confidential statements. "What, sir," he shouted, "shall
the cabinet of the United States be converted into a lion's mouth of
Venice, or into a _repertorium_ of the inquisition? Shall envy, hatred,
and all the malignant passions pour their poison into that cabinet
against the character and life of a fellow citizen, and yet that cabinet
not be examined in vindication of that character and to protect that
life?"

Genuine fury shook Martin. "Is the life of a man, lately in high public
esteem ... to be endangered for the sake of punctilio to the president?"
Obey illegal orders! "If every order, however arbitrary and unjust, is
to be obeyed, we are slaves as much as the inhabitants of Turkey. If the
presidential edicts are to be the supreme law, and the officers of the
government have but to register them, as formerly in France, ... we are
as subject to despotism, as ... the subjects of the former '_Grands
Monarques_.'"[1111]

Now occurred as strange a mingling of acrimony and learning as ever
enlightened and enlivened a court. Burr's counsel demanded that Marshall
deliver a supplementary charge to the grand jury. Marshall was
magnificently cautious. He would, he said, instruct the jury as confused
questions arose. On further reflection and argument--Marshall's dearly
beloved argument--he wrote additional instructions,[1112] but would not
at present announce them. There must be an actual "levying of war"; the
overt act must be established; no matter what suspicions were
entertained, what plans had been formed, what enterprises had been
projected, there could be "no treason without an overt act."[1113]

In such would-and-would-not fashion Marshall contrived to waive this
issue for the time being. Then he delivered that opinion which proved
his courage, divided Republicans, stirred all America, and furnished a
theme of disputation that remains fresh to the present day. He decided
to grant Burr's demand that Jefferson be called into court with the
papers asked for.

The purpose of the motion was, said Marshall, to produce copies of the
army and navy orders for the seizure of Burr, the original of
Wilkinson's letter to Jefferson, and the President's answer. To
accomplish this object legally, Burr had applied for the well-known
subpoena _duces tecum_ directed to the President of the United States.

The objection that until the grand jury had indicted Burr, no process
could issue to aid him to obtain testimony, was, Marshall would not say
new elsewhere, but certainly it had never before been heard of in
Virginia. "So far back as any knowledge of our jurisprudence is
possessed, the uniform practice of this country [Virginia] has been, to
permit any individual ... charged with any crime, to prepare for his
defence and to obtain the process of the court, for the purpose of
enabling him so to do." An accused person must expect indictment, and
has a right to compel the attendance of witnesses to meet it. It was
perhaps his duty to exercise that right: "The genius and character of
our laws and usages are friendly, not to condemnation at all events, but
to a fair and impartial trial."

In all criminal prosecutions the Constitution, Marshall pointed out,
guarantees to the prisoner "a speedy and public trial, and to compulsory
process for obtaining witnesses in his favour." The courts must hold
this "sacred," must construe it "to be something more than a dead
letter." Moreover, the act of Congress undoubtedly contemplated "that,
in all capital cases, the accused shall be entitled to process before
indictment found." Thus "immemorial usage," the language of the
Constitution, the National statute, all combined to give "any person,
charged with a crime in the courts of the United States, ... a right,
before, as well as after indictment, to the process of the court to
compel the attendance of his witnesses."

But could "a subpoena _duces tecum_ be directed to the president of
the United States?" If it could, ought it to be "in this case"? Neither
in the Constitution nor in an act of Congress is there any exception
whatever to the right given all persons charged with crime to compel the
attendance of witnesses. "No person could claim an exemption." True, in
Great Britain it was considered "to be incompatible with his dignity"
for the King "to appear under the process of the court." But did this
apply to the President of the United States? Marshall stated the many
differences between the status of the British King and that of the
American President.

The only possible ground for exempting the President "from the general
provisions of the constitution" would be, of course, that "his
duties ... demand his whole time for national objects. But," continued
Marshall, "it is apparent, that this demand is not unremitting"--a
statement at which Jefferson took particular offense.[1114] Should the
President be so occupied when his presence in court is required, "it
would be sworn on the return of the subpoena, and would rather
constitute a reason for not obeying the process of the court, than a
reason against its being issued."

To be sure, any court would "much more cheerfully" dispense with the
duty of issuing a subpoena to the President than to perform that duty;
"but, if it be a duty, the court can have no choice" but to perform it.

If, "as is admitted by counsel for the United States," the President may
be "summoned to give his personal attendance to testify," was that power
nullified because "his testimony depends on a paper in his possession,
not on facts which have come to his knowledge otherwise than by
writing?" Such a distinction is "too much attenuated to be countenanced
in the tribunals of a just and humane nation."[1115] The character of
the paper desired as evidence, and not "the character of the person who
holds it," determines "the propriety of introducing any paper ... as
testimony."

It followed, then, that "a subpoena _duces tecum_ may issue to any
person to whom an ordinary subpoena may issue." The only difference
between the two writs is that one requires only the attendance of the
witness, while the other directs also "bringing with him a paper in his
custody."

In many States the process of subpoena _duces tecum_ issues of course,
and without any action of the judge. In Virginia, however, leave of the
court is required; but "no case exists ... in which the motion ... has
been denied or in which it has been opposed," when "founded on an
affidavit."

The Chief Justice declared that he would not issue the writ if it were
apparent that the object of the accused in applying for it was "not
really in his own defence, but for purposes which the court ought to
discountenance. The court would not lend its aid to motions obviously
designed to manifest disrespect to the government; but the court has no
right to refuse its aid to motions for papers to which the accused may
be entitled, and which may be material in his defence." If this was true
in the matter of Burr's application, "would it not be a blot in the
page, which records the judicial proceedings of this country, if, in a
case of such serious import as this, the accused should be denied the
use" of papers on which his life might depend?

Marshall carefully examined a case cited by the Government[1116] in
which Justice Paterson had presided, at the same time paying to the
memory of the deceased jurist a tribute of esteem and affection. He
answered with tedious particularity the objections to the production of
Wilkinson's letter to Jefferson, and then referred to the "disrespect"
which the Government counsel had asserted would be shown to the
President if Marshall should order him to appear in court with the
letters and orders.

"This court feels many, perhaps peculiar motives, for manifesting as
guarded respect for the chief magistrate of the Union as is compatible
with its official duties." But, declared Marshall, "to go beyond
these ... would deserve some other appellation than the term respect."

If the prosecution should end, "_as is expected_" by the Government,
those who withheld from Burr any paper necessary to his defense would,
of course, bitterly regret their conduct. "I will not say, that this
circumstance would ... tarnish the reputation of the Government; but I
will say, that it would justly tarnish the reputation of the court,
which had given its sanction to its being withheld."

With all that impressiveness of voice and manner which, on occasion, so
transformed Marshall, he exclaimed: "Might I be permitted to utter one
sentiment, with respect to myself, it would be to deplore, most
earnestly, the occasion which should compel me to look back on any part
of my official conduct with so much self-reproach as I should feel,
could I declare, on the information now possessed, that the accused is
not entitled to the letter in question, if it should be really important
to him."

Let a subpoena _duces tecum_, therefore ruled the Chief Justice, be
issued, directed to Thomas Jefferson, President of the United
States.[1117]

Nothing that Marshall had before said or done so highly excited counsel
for the prosecution as his assertion that they "expected" Burr's
conviction. The auditors were almost as deeply stirred. Considering the
peculiarly mild nature of the man and his habitual self-restraint,
Marshall's language was a pointed rebuke, not only to the Government's
attorneys, but to the Administration itself. Even Marshall's friends
thought that he had gone too far.

Instantly MacRae was on his feet. He resented Marshall's phrase, and
denied that the Government or its counsel "wished" the conviction of
Burr--such a desire was "completely abhorrent to [their] feelings."
MacRae hoped that Marshall did not express such an opinion deliberately,
but that it had "accidentally fallen from the pen of [his] honor."

Marshall answered that he did not intend to charge the Administration or
its attorneys with a desire to convict Burr "whether he was guilty or
innocent"; but, he added dryly, "gentlemen had so often, and so
uniformly asserted, that colonel Burr was guilty, and they had so often
repeated it before the testimony was perceived, on which that guilt
could alone be substantiated, that it appeared to him probable, that
they were not indifferent on the subject."[1118]

Hay, in his report to Jefferson, gave more space to this incident than
he did to all other features of the case. He told the President that
Marshall had issued the dreaded process and then quoted the offensive
sentence. "This expression," he relates, "produced a very strong & very
general sensation. The friends of the Judge, both personal & political,
Condemned it. Alex^{r.} M^{c}Rae rose as soon as he had finished, and in
terms mild yet determined, demanded an explanation of it. The Judge
actually blushed." And, triumphantly continues the District Attorney,
"he did attempt an explanation.... I observed, with an indifference
which was not assumed, that I had endeavored to do my duty, according to
my own judgment and feelings, that I regretted nothing that I had said
or done, that I should pursue the same Course throughout, and that it
was a truth, that I cared not what _any man_ said or thought about it."

Marshall himself was perturbed. "About three hours afterwards," Hay
tells Jefferson, "when the Crowd was thinned, the Judge acknowledged the
impropriety of the expression objected to, & informed us from the Bench
that he had erased it." The Chief Justice even apologized to the
wrathful Hay: "After he had adjourned the Court, he descended from the
Bench, and told me that he regretted the remark, and then by way of
apology said, that he had been so pressed for time, that he had never
read the opinion, after he had written it." Hay loftily adds: "An
observation from me that I did not perceive any connection between my
declarations & his remark, or how the former could regularly be the
Cause of the latter, closed the Conversation."[1119]

Hay despondently goes on to say that "there never was such a trial from
the beginning of the world to this day." And what should he do about
Bollmann? That wretch "resolutely refuses his pardon & is determined not
to utter a word, if he can avoid it. The pardon lies on the clerks
table. The Court are to decide whether he is really pardoned or not.
Martin says he is not pardoned. Such are the questions, with which we
are worried. If the Judge says that he is not pardoned, I will take the
pardon back. What shall I then do with him?"

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 document. 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 tecum_, 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 passes 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 Constitution 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 Constitution 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
asserting that "the leading principle of our Constitution 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 constitutional 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 cock." 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 passion 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 noble 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 Saturday, 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 canal, 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 quantity
of land on the Washita; 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 Washita 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 Massac 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 ashore 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]

Next Wilkinson detailed to the grand jury the revelations he had made to
Jefferson. He produced Burr's cipher letter to him, and was forced to
admit that he had left out the opening sentence of it--"Yours,
postmarked 13th of May, is received"--and that he had erased some words
of it and substituted others. He recounted the alarming disclosures he
had so cunningly extracted from Burr's messenger, and enlarged upon the
heroic measures he had taken to crush treason and capture traitors. For
four days[1139] Wilkinson held forth, and himself escaped indictment by
the narrow margin of 7 to 9 of the sixteen grand jurymen. All the
jurymen, however, appear to have believed him to be a scoundrel.[1140]

"The mammoth of iniquity escaped," wrote John Randolph in acrid disgust,
"not that any man pretended to think him innocent, but upon certain
wire-drawn distinctions that I will not pester you with. Wilkinson is
the only man I ever saw who was from the bark to the very core a
villain.... Perhaps you never saw human nature in so degraded a
situation as in the person of Wilkinson before the grand jury, and yet
this man stands on the very summit and pinnacle of executive
favor."[1141]

Samuel Swartwout, the courier who had delivered Burr's ill-fated letter,
"most positively denied" that he had made the revelations which
Wilkinson claimed to have drawn from him.[1142] The youthful Swartwout
as deeply impressed the grand jury with his honesty and truthfulness as
Wilkinson impressed that body with his untrustworthiness and
duplicity.[1143]

Peter Taylor and Jacob Allbright then recounted their experiences.[1144]
And the Morgans told of Burr's visit and of their inferences from his
mysterious tones of voice, glances of eye, and cryptic expressions. So
it was, that in spite of overwhelming testimony of other
witnesses,[1145] who swore that Burr's purposes were to settle the
Washita lands and in the event of war with Spain, and only in that
event, to invade Mexico, with never an intimation of any project hostile
to the United States--so it was that bills of indictment for treason and
for misdemeanor were, on June 24, found against Aaron Burr of New York
and Harman Blennerhassett of Virginia. The indictment for treason
charged that on December 13, 1806, at Blennerhassett's island in
Virginia, they had levied war on the United States; and the one for
misdemeanor alleged that, at the same time and place, they had set on
foot an armed expedition against territory belonging to His Catholic
Majesty, Charles IV of Spain.[1146]

This result of the grand jury's investigations was reached because of
that body's misunderstanding of Marshall's charge and of his opinion in
the Bollmann and Swartwout case.[1147]

John Randolph, as foreman of the grand jury, his nose close to the
ground on the scent of the principal culprit, came into court the day
after the indictment of Burr and Blennerhassett and asked for the letter
from Wilkinson to Burr, referred to in Burr's cipher dispatch to
Wilkinson, and now in the possession of the accused. Randolph said that,
of course, the grand jury could not ask Burr to appear before them as a
witness, but that they did want the letter.

Marshall declared "that the grand jury were perfectly right in the
opinion." Burr said that he could not reveal a confidential
communication, unless "the extremity of circumstances might impel him
to such a conduct." He could not, for the moment, decide; but that
"unless it were extorted from him by law" he could not even "deliberate
on the proposition to deliver up any thing which had been confided to
his honour."

Marshall announced that there was no "objection to the grand jury
calling before them and examining any man ... who laid under an
indictment." Martin agreed "there could be no objection."

The grand jury did not want Burr as a witness, said John Randolph. They
asked only for the letter. If they should wish Burr's presence at all,
it would be only for the purpose of identifying it. So the grand jury
withdrew.[1148]

Hay was swift to tell his superior all about it, although he trembled
between gratification and alarm. "If every trial were to be like that, I
am doubtful whether my patience will sustain me while I am wading thro'
this abyss of human depravity."

Dutifully he informed the President that he feared that "the Gr: Jury
had not dismissed all their suspicions of Wilkinson," for John Randolph
had asked for his cipher letter to Burr. Then he described to Jefferson
the intolerable prisoner's conduct: "Burr rose immediately, & declared
that no consideration, no calamity, no desperation, should induce _him_
to betray a letter confidentially written. He could not even allow
himself to deliberate on a point, where his conduct was prescribed by
the clearest principles of honor &c. &c. &c."

Hay then related what Marshall and John Randolph had said, underscoring
the statement that "the Gr: Jury _did not want A. B. as a witness_." Hay
did full credit, however, to Burr's appearance of candor: "The attitude
& tone assumed by Burr struck everybody. There was an appearance of
_honor_ and magnanimity which brightened the countenances of the phalanx
who daily attend, for his encouragement & support."[1149]

Day after day was consumed in argument on points of evidence, while the
grand jury were examining witnesses. Marshall delivered a long written
opinion upon the question as to whether a witness could be forced to
give testimony which he believed might criminate himself. The District
Attorney read Jefferson's two letters upon the subject of the subpoena
_duces tecum_. No pretext was too fragile to be seized by one side or
the other, as the occasion for argument upon it demanded--for instance,
whether or not the District Attorney might send interrogatories to the
grand jury. Always the lawyers spoke to the crowd as well as to the
court, and their passages at arms became ever sharper.[1150]

Wilkinson is "an honest man and a patriot"--no! he is a liar and a
thief; Louisiana is a "poor, unfortunate, enslaved country"; letters had
been seized by "foulness and violence"; the arguments of Burr's
attorneys are "mere declamations"; the Government's agents are striving
to prevent Burr from having "a fair trial ... the newspapers and party
writers are employed to _cry_ and _write_ him down; his counsel are
denounced for daring to defend him; the passions of the grand jury are
endeavored to be excited against him, at all events";[1151] Hay's mind
is "harder than Ajax's seven fold shield of bull's hide"; Edmund
Randolph came into court "with mysterious looks of awe and terror ... as
if he had something to communicate which was too horrible to be told";
Hay is always "on his heroics"; he "hopped up like a parched pea"; the
object of Burr's counsel is "to prejudice the surrounding multitude
against General Wilkinson"; one newspaper tale is "as impudent a
falsehood as ever malignity had uttered"--such was the language with
which the arguments were adorned. They were, however, well sprinkled
with citations of authority.[1152]


FOOTNOTES:

[1017] See vol. I, 201, of this work.

[1018] Tobacco chewing and smoking in court-rooms continued in most
American communities in the South and West down to a very recent period.

[1019] Address of John Tyler on "Richmond and its Memories," Tyler, I,
219.

[1020] Irving was twenty-four years old when he reported the Burr trial.

[1021] _Blennerhassett Papers_: Safford, 465. Marshall made this avowal
to Luther Martin, who personally told Blennerhassett of it.

[1022] Judge Francis M. Finch, in Dillon, I, 402.

"The men who framed that instrument [Constitution] remembered the crimes
that had been perpetrated under the pretence of justice; for the most
part they had been traitors themselves, and having risked their necks
under the law they feared despotism and arbitrary power more than they
feared treason." (Adams: _U.S._ III, 468.)

[1023] A favorite order from the bench for the execution of the
condemned was that the culprit should be drawn prostrate at the tails of
horses through the jagged and filthy streets from the court-room to the
place of execution; the legs, arms, nose, and ears there cut off; the
intestines ripped out and burned "before the eyes" of the victim; and
finally the head cut off. Details still more shocking were frequently
added. See sentences upon William, Lord Russell, July 14, 1683 (_State
Trials Richard II to George I_, vol. 3, 660); upon Algernon Sidney,
November 26, 1683 (_ib._ 738); upon William, Viscount Stafford, December
7, 1680 (_ib._ 214); upon William Stayley, November 21, 1678 (_ib._ vol.
2, 656); and upon other men condemned for treason.

[1024] Even in Philadelphia, after the British evacuation of that place
during the Revolution, hundreds were tried for treason. Lewis alone,
although then a very young lawyer, defended one hundred and fifty-two
persons. (See _Chase Trial_, 21.)

[1025] "In the English law ... the rule ... had been that enough heads
must be cut off to glut the vengeance of the Crown." (Isaac N. Phillips,
in Dillon, II, 394.)

[1026] Iredell's charge to the Georgia Grand Jury, April 26, 1792,
_Iredell_: McRee, II, 349; and see Iredell's charge to the Massachusetts
Grand Jury, Oct. 12, 1792, _ib._ 365.

[1027] See his concurrence with Judge Peters's charge in the Fries case,
Wharton: _State Trials_, 587-91; and Peters's opinion, _ib._ 586; also
see Chase's charge at the second trial of Fries, _ib._ 636.

[1028] "The President's popularity is unbounded, and his will is that of
the nation.... Such is our present infatuation." (Nicholson to Randolph,
April 12, 1807, Adams: _Randolph_, 216-17.)

[1029] Hildreth, IV, 692.

[1030] Parton: _Burr_, 458.

[1031] Parton: _Jackson_, I, 333.

[1032] Jackson to Anderson, June 16, 1807, _ib._ 334.

[1033] _Ib._ 335.

[1034] _Ib._ 334-36.

[1035] Parton: _Burr_, 606-08; see also Parton: _Jackson_, II, 258-59,
351-54; and Davis, II, 433-36.

[1036] Address of John Tyler, "Richmond and its Memories," Tyler, I,
219.

[1037] Parton: _Burr_, 459.

[1038] _Memoirs of Lieut.-General Scott_, I, 13.

[1039] _Memoirs of Lieut.-General Scott_, I, 13, 16.

[1040] See _Great American Lawyers_: Lewis, II, 268-75.

Kennedy says that the stories of Wirt's habits of intoxication were
often exaggerated (Kennedy, I, 68); but see his description of the bar
of that period and his apologetic reference to Wirt's conviviality
(_ib._ 66-67).

[1041] _Blennerhassett Papers_: Safford, 426.

[1042] Parton: _Burr_, 461.

[1043] _Burr Trials_, I, 31-32.

[1044] _Ib._ 37.

[1045] _Ib._ 38.

[1046] Meaning the partiality of the persons challenged, such as
animosity toward the accused, conduct showing bias against him, and the
like. See _Bouvier's Law Dictionary_: Rawle, 3d revision, II, 1191.

[1047] _Burr Trials_, I, 38-39.

[1048] _Ib._ 41-42.

[1049] _Burr Trials_, I, 41-42.

[1050] Jefferson to Nicholas, Feb. 28, 1807, _Works_: Ford, X, 370-71.

[1051] _Burr Trials_, I, 43.

[1052] _Ib._ 44.

[1053] In view of the hatred which Marshall knew Randolph felt toward
Jefferson, it is hard to reconcile his appointment with the fairness
which Marshall tried so hard to display throughout the trial. However,
several of Jefferson's most earnest personal friends were on the grand
jury, and some of them were very powerful men. Also fourteen of the
grand jury were Republicans and only two were Federalists.

[1054] _Burr Trials_, I, 45-46. This grand jury included some of the
foremost citizens of Virginia. The sixteen men who composed this body
were: John Randolph, Jr., Joseph Eggleston, Joseph C. Cabell, Littleton
W. Tazewell, Robert Taylor, James Pleasants, John Brockenbrough, William
Daniel, James M. Garnett, John Mercer, Edward Pegram, Munford Beverly,
John Ambler, Thomas Harrison, Alexander Shephard, and James Barbour.

[1055] Marshall's error in this opinion, or perhaps the misunderstanding
of a certain passage of it (see _supra_, 350), caused him infinite
perplexity during the trial; and he was put to his utmost ingenuity to
extricate himself. The misconstruction by the grand jury of the true
meaning of Marshall's charge was one determining cause of the grand
jury's decision to indict Burr. (See _infra_, 466.)

[1056] _Burr Trials_, I, 47-48.

[1057] Hay to Jefferson, May 25, 1807, Jefferson MSS. Lib. Cong.

[1058] _Burr Trials_, I, 48-51.

[1059] _Burr Trials_, I, 53-54.

[1060] Irving to Paulding, June 22, 1807, _Life and Letters of
Washington Irving_: Irving, I, 145.

[1061] _Burr Trials_, I, 57-58.

[1062] _Burr Trials_, I, 58-76.

[1063] "I ... contented myself ... with ... declaring to the Audience
(for two thirds of our speeches have been addressed to the people) that
I was prepared to give the most direct contradiction to the injurious
Statements." (Hay to Jefferson, June 14, 1807, giving the President an
account of the trial, Jefferson MSS. Lib. Cong.)

[1064] He was hanged in effigy soon after the trial. (See _infra_, 539.)

[1065] It must be remembered that Marshall himself declared, in the very
midst of the contest, that it would be dangerous for a jury to acquit
Burr. (See _supra_, 401.)

[1066] He had narrowly escaped impeachment (see _supra_, chap. IV), and
during the trial he was openly threatened with that ordeal (see _infra_,
500).

[1067] _Burr Trials_, I, 79-81.

[1068] See _supra_, 390-91.

[1069] Jefferson to Hay, May 26, 1807, _Works_: Ford, X, footnote to
394-95.

[1070] _Burr Trials_, I, 81-82.

[1071] _Ib._ 82.

[1072] _Ib._ 84-85.

[1073] _Burr Trials_, I, 91.

[1074] _Ib._ 94.

[1075] _Ib._ 95-96.

[1076] _Burr Trials_, I, 492-97.

[1077] _Burr Trials_, I, 509-14.

[1078] _Burr Trials_, I, 97-101.

[1079] _Ib._ 97.

[1080] _Md. Hist. Soc. Fund-Pub. No. 24, 22._

[1081] _Blennerhassett Papers_: Safford, 468-69.

[1082] _Burr Trials_, I, 101-04.

[1083] _Burr Trials_, I, 105.

[1084] The men who went on this second bail bond for Burr were: William
Langburn, Thomas Taylor, John G. Gamble, and Luther Martin. (_Ib._ 106.)

[1085] _Blennerhassett Papers_: Safford, 315-16.

[1086] _Eaton_: Prentiss, 396-403; 4 Cranch, 463-66.

[1087] _Blennerhassett Papers_: Safford, 425.

[1088] Jefferson to Hay, May 28, 1807, _Works_: Ford, X, 395-96.

[1089] Jefferson to Eppes, May 28, 1807, _Works_: Ford, X, 412-13.

[1090] Hay to Jefferson, May 31, 1807, Jefferson MSS. Lib. Cong.

[1091] Jefferson to Hay, June 2, 1807, _Works_: Ford, X, 396-97.

[1092] Same to same, June 5, 1807, _ib._ 397-98; Hay to Jefferson, same
date, Jefferson MSS. Lib. Cong.; and others cited, _infra_.

[1093] Jefferson to Dayton, Aug. 17, 1807, _Works_: Ford, X, 478.

[1094] Irving to Mrs. Hoffman, June 4, 1807, Irving, I, 142.

[1095] _Ib._

[1096] Burr had seen the order in the _Natchez Gazette_. It was widely
published.

[1097] _Burr Trials_, I, 113-14.

[1098] _Burr Trials_, I, 115-18.

[1099] Hay to Jefferson, June 9, 1807, Jefferson MSS. Lib. Cong.

[1100] Jefferson to Hay, June 12, 1807, _Works_: Ford, X, 398-99.

[1101] _Burr Trials_, I, 124-25.

[1102] Irving to Mrs. Hoffman, June 4, 1807, Irving, I, 143.

[1103] Martin here refers to what he branded as "the farcical trials of
Ogden and Smith." In June and July, 1806, William S. Smith and Samuel G.
Ogden of New York were tried in the United States Court for that
district upon indictments charging them with having aided Miranda in his
attack on Caracas, Venezuela. They made affidavit that the testimony of
James Madison, Secretary of State, Henry Dearborn, Secretary of War,
Robert Smith, Secretary of the Navy, and three clerks of the State
Department, was necessary to their defense. Accordingly these officials
were summoned to appear in court. They refused, but on July 8, 1806,
wrote to the Judges--William Paterson of the Supreme Court and Matthias
B. Talmadge, District Judge--that the President "has specially signified
to us that our official duties cannot ... be at this juncture dispensed
with." (_Trials of Smith and Ogden_: Lloyd, stenographer, 6-7.)

The motion for an attachment to bring the secretaries and their clerks
into court was argued for three days. The court disagreed, and no action
therefore was taken. (_Ib._ 7-90.) One judge (undoubtedly Paterson) was
"of opinion, that the absent witnesses should be laid under a rule to
show cause, why an attachment should not be issued against them"; the
other (Talmadge) held "that neither an attachment in the first instance,
nor a rule to show cause ought to be granted." (_Ib._ 89.)

Talmadge was a Republican, appointed by Jefferson, and charged heavily
against the defendants (_ib._ 236-42, 287); but they were acquitted.

The case was regarded as a political prosecution, and the refusal of
Cabinet officers and department clerks to obey the summons of the court,
together with Judge Talmadge's disagreement with Justice Paterson--who
in disgust immediately left the bench under plea of ill-health (_ib._
90)--and the subsequent conduct of the trial judge, were commented upon
unfavorably. These facts led to Martin's reference during the Burr
trial.

[1104] _Burr Trials_, I, 127-28.

[1105] _Burr Trials_, I, 130-33.

[1106] _Ib._ 134-35.

[1107] _Burr Trials_, I, 137-45.

[1108] _Burr Trials_, I, 147-48.

[1109] _Ib._ 148-52.

[1110] _Burr Trials_, I, 153-64.

[1111] _Burr Trials_, I, 164-67.

[1112] _Ib._ 173-76.

[1113] _Burr Trials_, I, 177.

[1114] See _infra_, 455-56.

[1115] _Burr Trials_, I, 181-83.

[1116] United States _vs._ Smith and Ogden. (See _supra_, 436,
foot-note.)

[1117] _Burr Trials_, I, 187-88.

[1118] _Burr Trials_, I, 189.

[1119] Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.

[1120] Ambler: _Thomas Ritchie--A Study in Virginia Politics_, 40-41.

[1121] Jefferson to Hay, June 17, 1807, _Works_: Ford, X, 400-01.

[1122] Jefferson to Hay, June 19, 1807, _Works_: Ford, X, 402-03.

[1123] _Burr Trials_, I, 190.

[1124] _Burr Trials_, I, 191-93.

[1125] _Burr Trials_, I, 193-96.

[1126] Jefferson to Hay, June 20, 1807, _Works_: Ford, X, 403-05.

[1127] Hay to Jefferson, June 11, 1807, Jefferson MSS. Lib. Cong. This
letter announced Wilkinson's landing at Hampton Roads.

Wilkinson reached Richmond by stage on Saturday, June 13. He was
accompanied by John Graham and Captain Gaines, the ordinary witnesses
having been sent ahead on a pilot boat. (Graham to Madison, May 11,
1807, "Letters in Relation," MSS. Lib. Cong.) Graham incorrectly dated
his letter May 11 instead of June 11. He had left New Orleans in May,
and in the excitement of landing had evidently forgotten that a new
month had come.

Wilkinson was "too much fatigued" to come into court. (_Burr Trials_, I,
196.) By Monday, however, he was sufficiently restored to present
himself before Marshall.

[1128] Irving to Paulding, June 22, 1807, Irving, I, 145.

[1129] Wilkinson to Jefferson, June 17, 1807, "Letters in Relation,"
MSS. Lib. Cong.

The court reporter impartially states that Wilkinson was "calm,
dignified, and commanding," and that Burr glanced at him with "haughty
contempt." (_Burr Trials_, I, footnote to 197.)

[1130] "Gen: Jackson of Tennessee has been here ever since the 22^{d.}
[of May] denouncing Wilkinson in the coarsest terms in every company."
(Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.)

Hay had not the courage to tell the President that Jackson had been as
savagely unsparing in his attacks on Jefferson as in his thoroughly
justified condemnation of Wilkinson.

[1131] Truxtun left the Navy in 1802, and, at the time of the Burr
trial, was living on a farm in New Jersey. No officer in any navy ever
made a better record for gallantry, seamanship, and whole-hearted
devotion to his country. The list of his successful engagements is
amazing. He was as high-spirited as he was fearless and honorable.

In 1802, when in command of the squadron that was being equipped for our
war with Tripoli, Truxtun most properly asked that a captain be
appointed to command the flagship. The Navy was in great disfavor with
Jefferson and the whole Republican Party, and naval affairs were sadly
mismanaged or neglected. Truxtun's reasonable request was refused by the
Administration, and he wrote a letter of indignant protest to the
Secretary of the Navy. To the surprise and dismay of the experienced and
competent officer, Jefferson and his Cabinet construed his spirited
letter as a resignation from the service, and, against Truxtun's wishes,
accepted it as such. Thus the American Navy lost one of its ablest
officers at the very height of his powers. Truxtun at the time was
fifty-two years old. No single act of Jefferson's Administration is more
discreditable than this untimely ending of a great career.

[1132] This man was the elder Decatur, father of the more famous officer
of the same name. He had had a career in the American Navy as honorable
but not so distinguished as that of Truxtun; and his service had been
ended by an unhappy circumstance, but one less humiliating than that
which severed Truxtun's connection with the Navy.

The unworthiest act of the expiring Federalist Congress of 1801, and one
which all Republicans eagerly supported, was that authorizing most of
the ships of the Navy to be sold or laid up and most of the naval
officers discharged. (Act of March 3, 1801, _Annals_, 6th Cong. 1st and
2d Sess. 1557-59.) Among the men whose life profession was thus cut off,
and whose notable services to their country were thus rewarded, was
Commodore Stephen Decatur, who thereafter engaged in business in
Philadelphia.

[1133] It was under Stoddert's administration of the Navy Department
that the American Navy was really created. Both Truxtun and Decatur won
their greatest sea battles in our naval war with France, while Stoddert
was Secretary. The three men were close friends and all of them warmly
resented the demolition of the Navy and highly disapproved of Jefferson,
both as an individual and as a statesman. They belonged to the old
school of Federalists. Three more upright men did not live.

[1134] See _supra_, 304-05.

[1135] A popular designation of Eaton after his picturesque and heroic
Moroccan exploit.

[1136] Truxtun at the time of his conversations with Burr was in the
thick of that despair over his cruel and unjustifiable separation from
the Navy, which clouded his whole after life. The longing to be once
more on the quarter-deck of an American warship never left his heart.

[1137] _Burr Trials_, I, 486-91. This abstract is from the testimony
given by Commodore Truxtun before the trial jury, which was
substantially the same as that before the grand jury.

[1138] _Annals_, 10th Cong. 1st Sess. 452-63. See note 1, next page.

[1139] Wilkinson's testimony on the trial for misdemeanor (_Annals_,
10th Cong. 1st Sess, 520-22) was the same as before the grand jury.

"Wilkinson is now before the grand jury, and has such a mighty mass of
_words_ to deliver himself of, that he claims at least two days more to
discharge the wondrous cargo." (Irving to Paulding, June 22, 1807,
Irving, I, 145.)

[1140] See McCaleb, 335. Politics alone saved Wilkinson. The trial was
universally considered a party matter, Jefferson's prestige, especially,
being at stake. Yet seven out of the sixteen members of the grand jury
voted to indict Wilkinson. Fourteen of the jury were Republicans, and
two were Federalists.

[1141] Randolph to Nicholson, June 25, 1807, Adams: _Randolph_, 221-22.
Speaking of political conditions at that time, Randolph observed:
"Politics have usurped the place of law, and the scenes of 1798
[referring to the Alien and Sedition laws] are again revived."

[1142] Testimony of Joseph C. Cabell, one of the grand jury. (_Annals_,
10th Cong. 1st Sess. 677.)

[1143] "Mr. Swartwout ... discovered the utmost frankness and candor in
his evidence.... The very frank and candid manner in which he gave his
testimony, I must confess, raised him very high in my estimation, and
induced me to form a very different opinion of him from that which I had
before entertained." (Testimony of Littleton W. Tazewell, one of the
grand jury, _Annals_, 10th Cong. 1st Sess. 633.)

"The manner of Mr. Swartwout was certainly that of conscious innocence."
(Testimony of Joseph C. Cabell, one of the grand jury, _ib._ 677.)

[1144] See _supra_, 426-27.

[1145] Forty-eight witnesses were examined by the grand jury. The names
are given in Brady: _Trial of Aaron Burr_, 69-70.

[1146] _Burr Trials_, I, 305-06; also "Bills of Indictment," MSS.
Archives of the United States Court, Richmond, Va.

The following day former Senator Jonathan Dayton of New Jersey, Senator
John Smith of Ohio, Comfort Tyler and Israel Smith of New York, and
Davis Floyd of the Territory of Indiana, were presented for treason. How
Bollmann, Swartwout, Adair, Brown, and others escaped indictment is only
less comprehensible than the presentment of Tyler, Floyd, and the two
Smiths for treason.

[1147] _Blennerhassett Papers_: Safford, 314. "Two of the most
respectable and influential of that body, since it has been discharged,
have declared they mistook the meaning of Chief Justice Marshall's
opinion as to what sort of acts amounted to treason in this country, in
the case of Swartwout and Ogden [Bollmann]; that it was under the
influence of this mistake they concurred in finding such a bill against
A. Burr, which otherwise would have probably been ignored."

[1148] _Burr Trials_, I, 327-28.

[1149] Hay to Jefferson, June 25, 1807, Jefferson MSS. Lib. Cong.

[1150] _Burr Trials_, I, 197-357.

[1151] This was one of Luther Martin's characteristic outbursts. Every
word of it, however, was true.

[1152] _Burr Trials_, I, 197-357.




CHAPTER IX

WHAT IS TREASON?

    No person shall be convicted of Treason unless on the Testimony
    of two Witnesses to the same overt Act, or on Confession in open
    Court. (Constitution, Article III, Section 3.)

    Such are the jealous provisions of our laws in favor of the
    accused that I question if he can be convicted. (Jefferson.)

    The scenes which have passed and those about to be transacted
    will hereafter be deemed fables, unless attested by very high
    authority. (Aaron Burr.)

    That this court dares not usurp power is most true. That this
    court dares not shrink from its duty is no less true.
    (Marshall.)


While the grand jury had been examining witnesses, interesting things
had taken place in Richmond. Burr's friends increased in number and
devotion. Many of them accompanied him to and from court each day.[1153]
Dinners were given in his honor, and Burr returned these courtesies,
sometimes entertaining at his board a score of men and women of the
leading families of the city.[1154] Fashionable Richmond was rapidly
becoming Burr-partisan. In society, as at the bar, the Government had
been maneuvered into defense. Throughout the country, indeed, Burr's
numerous adherents had proved stanchly loyal to him.

"I believe," notes Senator Plumer in his diary, "even at this period,
that no man in this country, has more personal friends or who are more
firmly attached to his interests--or would make greater sacrifices to
aid him than this man."[1155] But this availed Burr nothing as against
the opinion of the multitude, which Jefferson manipulated as he chose.
Indeed, save in Richmond, this very fidelity of Burr's friends served
rather to increase the public animosity; for many of these friends were
persons of standing, and this fact did not appeal favorably to the rank
and file of the rampant democracy of the period.

In Richmond, however, Burr's presence and visible peril animated his
followers to aggressive action. On the streets, in the taverns and
drinking-places, his adherents grew bolder. Young Swartwout chanced to
meet the bulky, epauletted Wilkinson on the sidewalk. Flying into "a
paroxysm of disgust and rage," Burr's youthful follower[1156] shouldered
the burly general "into the middle of the street." Wilkinson swallowed
the insult. On learning of the incident Jackson "was wild with
delight."[1157] Burr's enemies were as furious with anger. To spirited
Virginians, only treason itself was worse than the refusal of Wilkinson,
thus insulted, to fight.

Swartwout, perhaps inspired by Jackson, later confirmed this public
impression of Wilkinson's cowardice. He challenged the General to a
duel; the hero refused--"he held no correspondence with traitors or
conspirators," he loftily observed;[1158] whereupon the young
"conspirator and traitor" denounced, in the public press, the commander
of the American armies as guilty of treachery, perjury, forgery, and
cowardice.[1159] The highest officer in the American military
establishment "posted for cowardice" by a mere stripling! More than ever
was Swartwout endeared to Jackson.

Soon after his arrival at Richmond, and a week before Burr was indicted,
Wilkinson perceived, to his dismay, the current of public favor that was
beginning to run toward Burr; and he wrote to Jefferson in unctuous
horror: "I had anticipated that a deluge of Testimony would have been
poured forth from all quarters, to overwhelm Him [Burr] with guilt &
dishonour--... To my Astonishment I found the Traitor vindicated &
myself condemned by a Mass of Wealth Character-influence &
Talents--merciful God what a Spectacle did I behold--Integrity & Truth
perverted & trampled under foot by turpitude & Guilt, Patriotism appaled
& Usurpation triumphant."[1160]

Wilkinson was plainly weakening, and Jefferson hastened to comfort his
chief witness: "No one is more sensible than myself of the injustice
which has been aimed at you. Accept I pray, my salutations and
assurances of respect and esteem."[1161]

Before the grand jury had indicted Burr and Blennerhassett, Wilkinson
suffered another humiliation. On the very day that the General sent his
wailing cry of outraged virtue to the President, Burr gave notice that
he would move that an attachment should issue against Jefferson's hero
for "contempt in obstructing the administration of justice" by rifling
the mails, imprisoning witnesses, and extorting testimony by
torture.[1162] The following day was consumed in argument upon the
motion that did not rise far above bickering. Marshall ruled that
witnesses should be heard in support of Burr's application, and that
Wilkinson ought to be present.[1163] Accordingly, the General was
ordered to come into court.

James Knox, one of the young men who had accompanied Burr on his
disastrous expedition, had been brought from New Orleans as a witness
for the Government. He told a straightforward story of brutality
inflicted upon him because he could not readily answer the printed
questions sent out by Jefferson's Attorney-General.[1164] By other
witnesses it appeared that letters had been improperly taken from the
post-office in New Orleans.[1165] An argument followed in which counsel
on both sides distinguished themselves by the learning and eloquence
they displayed.[1166]

It was while Botts was speaking on this motion to attach Wilkinson, that
the grand jury returned the bills of indictment.[1167] So came the
dramatic climax.

Instantly the argument over the attachment of Wilkinson was suspended.
Burr said that he would "prove that the indictment against him had been
obtained by perjury"; and that this was a reason for the court to
exercise its discretion in his favor and to accept bail instead of
imprisoning him.[1168] Marshall asked Martin whether he had "any
precedent, where a court has bailed for treason, after the finding of a
grand jury," when "the testimony ... had been impeached for perjury," or
new testimony had been presented to the court.[1169] For once in his
life, Martin could not answer immediately and offhand. So that night
Aaron Burr slept in the common jail at Richmond.

"The cup of bitterness has been administered to him with unsparing
hand," wrote Washington Irving.[1170] But he did not quail. He was
released next morning upon a writ of habeas corpus;[1171] the argument
on the request for the attachment of Wilkinson was resumed, and for
three days counsel attacked and counter-attacked.[1172] On June 26,
Burr's attorneys made oath that confinement in the city jail was
endangering his health; also that they could not, under such conditions,
properly consult with him about the conduct of his case. Accordingly,
Marshall ordered Burr removed to the house occupied by Luther Martin;
and to be confined to the front room, with the window shutters secured
by bars, the door by a padlock, and the building guarded by seven men.
Burr pleaded not guilty to the indictments against him, and orders were
given for summoning the jury to try him.[1173]

Finally, Marshall delivered his written opinion upon the motion to
attach Wilkinson. It was unimportant, and held that Wilkinson had not
been shown to have influenced the judge who ordered Knox imprisoned or
to have violated the laws intentionally. The Chief Justice ordered the
marshal to summon, in addition to the general panel, forty-eight men to
appear on August 3 from Wood County, in which Blennerhassett's island
was located, and where the indictment charged that the crime had been
committed.[1174]

Five days before Marshall adjourned court in order that jurymen might be
summoned and both prosecution and defense enabled to prepare for trial,
an event occurred which proved, as nothing else could have done, how
intent were the people on the prosecution of Burr, how unshakable the
tenacity with which Jefferson pursued him.

On June 22, 1807, the British warship, the Leopard, halted the American
frigate, the Chesapeake, as the latter was putting out to sea from
Norfolk. The British officers demanded of Commodore James Barron to
search the American ship for British deserters and to take them if
found. Barron refused. Thereupon the Leopard, having drawn alongside the
American vessel, without warning poured broadsides into her until her
masts were shot away, her rigging destroyed, three sailors killed and
eighteen wounded. The Chesapeake had not been fitted out, was unable to
reply, and finally was forced to strike her colors. The British officers
then came on board and seized the men they claimed as deserters, all but
one of whom were American-born citizens.[1175]

The whole country, except New England, roared with anger when the news
reached the widely separated sections of it; but the tempest soon spent
its fury. Quickly the popular clamor returned to the "traitor" awaiting
trial at Richmond. Nor did this "enormity," as Jefferson called the
attack on the Chesapeake,[1176] committed by a foreign power in American
waters, weaken for a moment the President's determination to punish the
native disturber of our domestic felicity.

The news of the Chesapeake outrage arrived at Richmond on June 25, and
John Randolph supposed that, of course, Jefferson would immediately call
Congress in special session.[1177] The President did nothing of the
kind. Wilkinson, as Commander of the Army, advised him against armed
retaliation. The "late outrage by the British," wrote the General, "has
produced ... a degree of Emotion bordering on rage--I revere the
Honourable impulse but fear its Effects--... The present is no moment
for precipitancy or a stretch of power--on the contrary the British
being prepared for War & we not, a sudden appeal to hostilities will
give them a great advantage--... The efforts made here [Richmond] by a
band of depraved Citizens, in conjunction with an audacious phalanx of
insolent exotics, to save Burr, will have an ultimate good Effect, for
the national Character of the _Ancient dominion_ is in display, and the
honest impulses of true patriotism will soon silence the advocates of
usurpation without & conspiracy within."

Wilkinson tells Jefferson that he is coming to Washington forthwith to
pay his "respects," and concludes: "You are doubtless well advised of
proceedings here in the case of Burr--to me they are incomprehensible as
I am no Jurist--The Grand Jury actually made an attempt to present me
for Misprision of Treason--... I feel myself between 'Scylla and
Carybdis' the Jury would Dishonor me for failing of my Duty, and Burr &
his Conspirators for performing it--"[1178]

Not until five weeks after the Chesapeake affair did the President call
Congress to convene in special session on October 26--more than four
months after the occurrence of the crisis it was summoned to
consider.[1179] But in the meantime Jefferson had sent a messenger to
advise the American Minister in London to tell the British Government
what had happened, and to demand a disavowal and an apology.

Meanwhile, the Administration vigorously pushed the prosecution of the
imprisoned "traitor" at Richmond.[1180] Hay was dissatisfied that Burr
should remain in Martin's house, even under guard and with windows
barred and door locked; and he obtained from the Executive Council of
Virginia a tender to the court of "apartments on the third floor" of the
State Penitentiary for the incarceration of the prisoner. Burr's counsel
strenuously objected, but Marshall ordered that he be confined there
until August 2, at which time he should be returned to the barred and
padlocked room in Martin's house.[1181]

In the penitentiary, "situated in a solitary place among the hills" a
mile and a half from Richmond,[1182] Burr remained for five weeks. Three
large rooms were given him in the third story; the jailer was
considerate and kind; his friends called on him every day;[1183] and
servants constantly "arrived with messages, notes, and inquiries,
bringing oranges, lemons, pineapples, raspberries, apricots, cream,
butter, ice and some ordinary articles."[1184]

Burr wrote Theodosia of his many visitors, women as well as men: "It is
well that I have an ante-chamber, or I should often be _gêné_ with
visitors." If Theodosia should come on for the trial, he playfully
admonishes her that there must be "no agitations, no complaints, no
fears or anxieties on the road, or I renounce thee."[1185]

Finally Burr asked his daughter to come to him: "I want an independent
and discerning witness to my conduct and that of the government. The
scenes which have passed and those about to be transacted will exceed
all reasonable credibility, and will hereafter be deemed fables, unless
attested by very high authority.... I should never invite any one, much
less those so dear to me, to witness my disgrace. I may be immured in
dungeons, chained, murdered in legal form, but I cannot be humiliated or
disgraced. If absent, you will suffer great solicitude. In my presence
you will feel none, whatever be the _malice_ or the _power_ of my
enemies, and in both they abound."[1186]

Theodosia was soon with her father. Her husband, Joseph Alston, now
Governor of South Carolina, accompanied her; and she brought her little
son, who, almost as much as his beautiful mother, was the delight of
Burr's heart.

During these torrid weeks the public temper throughout the country rose
with the thermometer.[1187] The popular distrust of Marshall grew into
open hostility. A report of the proceedings, down to the time when Burr
was indicted for treason, was published in a thick pamphlet and sold all
over Virginia and neighboring States. The impression which the people
thus acquired was that Marshall was protecting Burr; for had he not
refused to imprison him until the grand jury indicted the "traitor"?

The Chief Justice estimated the situation accurately. He knew, moreover,
that prosecutions for treason might be instituted thereafter in other
parts of the country, particularly in New England. The Federalist
leaders in that section had already spoken and written sentiments as
disloyal, essentially, as those now attributed to Burr; and, at that
very time, when the outcry against Burr was loudest, they were beginning
to revive their project of seceding from the Union.[1188] To so
excellent a politician and so far-seeing a statesman as Marshall, it
must have seemed probable that his party friends in New England might be
brought before the courts to answer to the same charge as that against
Aaron Burr.

At all events, he took, at this time, a wise and characteristically
prudent step. Four days after the news of the Chesapeake affair reached
Richmond, the Chief Justice asked his associates on the Supreme Bench
for their opinion on the law of treason as presented in the case of
Aaron Burr. "I am aware," he wrote, "of the unwillingness with which a
judge will commit himself by an opinion on a case not before him, and on
which he has heard no argument. Could this case be readily carried
before the Supreme Court, I would not ask an opinion in its present
stage. But these questions must be decided by the judges separately on
their respective circuits, and I am sure that there would be a strong
and general repugnance to giving contradictory decisions on the same
points. Such a circumstance would be disreputable to the judges
themselves as well as to our judicial system. This suggestion suggests
the propriety of a consultation on new and different subjects and will,
I trust, apologize for this letter."[1189]

Whether a consultation was held during the five weeks that the Burr
trial was suspended is not known. But if the members of the Supreme
Court did not meet the Chief Justice, it would appear to be certain that
they wrote him their views of the American law of treason; and that, in
the crucial opinion which Marshall delivered on that subject more than
two months after he had written to his associates, he stated their
mature judgments as well as his own.

It was, therefore, with a composure, unwonted even for him, that
Marshall again opened court on August 3, 1807. The crowd was, if
possible, greater than ever. Burr entered the hall with his son-in-law,
Governor Alston.[1190] Not until a week later was counsel for the
Government ready to proceed. When at last the men summoned to serve on
the petit jury were examined as to their qualifications, it was all but
impossible to find one impartial man among them--utterly impossible to
secure one who had not formed opinions from what, for months, had been
printed in the newspapers.

Marshall described with fairness the indispensable qualifications of a
juror.[1191] Men were rejected as fast as they were questioned--all had
read the stories and editorial opinions that had filled the press, and
had accepted the deliberate judgment of Jefferson and the editors; also,
they had been impressed by the public clamor thus created, and believed
Burr guilty of treason. Out of forty-eight men examined during the first
day, only four could be accepted.[1192]

While the examination of jurors was in progress, one of the most
brilliant debates of the entire trial sprang up, as to the nature and
extent of opinions formed which would exclude a man from serving on a
jury.[1193]

When Marshall was ready to deliver his opinion, he had heard all the
reasoning that great lawyers could give on the subject, and had listened
to acute analyses of all the authorities. His statement of the law was
the ablest opinion he had yet delivered during the proceedings, and is
an admirable example of his best logical method. It appears, however, to
have been unnecessary, and was doubtless delivered as a part of
Marshall's carefully considered plan to go to the extreme throughout
the trial in the hearing and examination of every subject.[1194]

For nearly two weeks the efforts to select a jury continued. Not until
August 15 were twelve men secured, and most of these avowed that they
had formed opinions that Burr was a traitor. They were accepted only
because impartial men could not be found.

When Marshall finished the reading of his opinion, Hay promptly advised
Jefferson that "the [bi]as of Judge Marshall is as obvious, as if it was
[stam]ped upon his forehead.... [He is] endeavoring to work himself up
to a state of [f]eeling which will enable [him] to aid Burr throughout
the trial, without appearing to be conscious of doing wrong. He
[Marshall] seems to think that his reputation is irretrievably gone, and
that he has now nothing to lose by doing as he pleases.--His concern for
Burr is wonderful. He told me many years ago, when Burr was rising in
the estimation of the republican party, that he was as profligate in
principle, as he was desperate in fortune. I remember his words. They
astonished me.

"Yet," complained Hay, "when the Gr: Jury brought in their bill the
Chief Justice gazed at him, for a long time, without appearing conscious
that he was doing so, with an expression of sympathy & sorrow as strong,
as the human countenance can exhibit without _palpable_ emotion. If Mr.
Burr has any feeling left, yesterday must have been a day of agonizing
humiliation," because the answers of the jurors had been uniformly
against him; and Hay gleefully relates specimens of them.

"There is but one chance for the accused," he continued, "and that is a
good one because it rests with the Chief Justice. It is already hinted,
but not by himself [that] the decision of the Supreme Court will no[t
be] deemed binding. If the assembly of men on [Blennerhassett's is]land,
can be pronounced 'not an overt act' [it will] be so pronounced."[1195]

Hay's opening statement to the jury was his best performance of the
entire proceedings. He described Burr's purpose in almost the very words
of Jefferson's Special Message. The gathering on Blennerhassett's island
was, he said, the overt act; Burr, it was true, was not there at the
time, but his presence was not necessary. Had not Marshall, in the
Bollmann and Swartwout case, said that "if war be actually levied, ...
_all those who perform any part, however minute_, or _however remote
from the scene of action_, and who are actually _leagued in the general
conspiracy, are to be considered_ as _traitors_"?[1196]

The examination of the Government's witnesses began. Eaton took the
stand; but Burr insisted that the overt act must be proved before
collateral testimony could be admitted. So came the first crossing of
swords over the point that was to save the life of Aaron Burr. The
arguments of counsel were brilliant; but neither side forgot the public.
They must thrill the audience as well as convince the court. "There had
been a great deal of war in the newspapers," said Wickham, but
everybody knew "that there had been no war in fact." Wirt insisted on
"unfolding events as they occurred"; that was "the lucid order of nature
and reason." Martin pointed out that Eaton's testimony did not "relate
to any _acts_ committed any where, but to mere declarations out of the
district."[1197] Let the evidence be pertinent. The indictment charged a
specific act, and it must be proved as charged. No man could be expected
suddenly to answer for every act of his life. If Burr had planned to
free Mexico and had succeeded, "he would have merited the applause of
the friends of liberty and of posterity; ... but his friends may now
pray that he may not meet the fate that Washington himself would have
met, if the revolution had not been established."

A mass of decisions, English as well as American, were cited by both
Wirt and Martin;[1198] and when, that night, Marshall began to write his
opinion on whether the overt act must be proved before other testimony
could be received, all authorities had been reviewed, all arguments
made.

Must the overt act be proved before hearing collateral testimony? The
question, said Marshall, was precisely the same as that raised and
decided on the motion to commit Burr. But it came up now under different
circumstances--an indictment had been found "specifying a charge which
is to be proved," and thus "an issue made up which presents a point to
which all the testimony must apply." So Marshall could now "determine,
with some accuracy, on the relevancy of the testimony."

The prosecution contended that the crime consisted of "the fact and the
intention," and that the Government might first prove either of these;
the defense insisted that the overt act must be shown before any
testimony, explanatory or confirmatory of that fact, can be received. To
prove first the fact charged was certainly "the most useful ... and ...
natural order of testimony"; but no fixed rule of evidence required it,
and no case had been cited in which any court had ever "forced" it on
counsel for the prosecution.

The different impressions made upon the minds of the jury by the order
of testimony was important, said Marshall: "Although human laws punish
actions, the human mind spontaneously attaches guilt to intentions."
When testimony had prepared the mind to look upon the prisoner's designs
as criminal, a jury would consider a fact in a different light than if
it had been proved before guilty intentions had been shown. However,
since no rule prevented the prosecution from first proving either, "no
alteration of that arrangement ... will now be directed."

But, continued Marshall, "the intention which is ... relevant in this
stage of the inquiry is the intention which composes a part of the
crime, the intention with which the overt act itself was committed; not
a general evil disposition, or an intention to commit a distinct
[different] fact." Testimony as to such intentions, "if admissible at
all, is received as corroborative or confirmatory testimony," and could
not precede "that which it is to corroborate or confirm."

Apply this rule to Eaton's testimony: it would be admissible only
"so far as his testimony relate[d] to the fact charged in the
indictment, ... to levying war on Blennerhassett's island," and the
"design to seize on New-Orleans, or to separate by force, the western
from the Atlantic states"; but "so far as it respect[ed] other plans to
be executed in the city of Washington, or elsewhere," Eaton's story
would be at best merely "corroborative testimony," and, "if admissible
at any time," could be received only "after hearing that which it is to
confirm."

So let Hay "proceed according to his own judgment." Marshall would not
exclude any testimony except that which appeared to be irrelevant, and
upon this he would decide when it was offered.[1199]

Again Eaton was called to the stand. Before he began his tale, he wished
to explain "the motives" of his "own conduct." Marshall blandly
suggested that the witness stick to Burr's revelations to him. Then,
said Eaton, "concerning any overt act, which goes to prove Aaron Burr
guilty of treason I know nothing.... But concerning Colonel Burr's
expressions of treasonable intentions, I know much."

Notwithstanding Marshall's intimation that Eaton must confine his
testimony to Burr, "the hero of Derne" was not to be denied his
self-vindication; not even the Chief Justice should check his recital of
his patriotism, his glories, his wrongs. Burr had good reasons for
supposing him "disaffected toward the Government"; he then related at
length his services in Africa, the lack of appreciation of his ability
and heroism, the preferment of unworthy men to the neglect of himself.
Finally, Eaton, who "strutted more in buskin than usual," to the
amusement of "the whole court,"[1200] delivered his testimony, and once
more related what he had said in his deposition. Since Marshall had
"decided it to be irrelevant," Eaton omitted the details about Burr's
plans to murder Jefferson, turn Congress out of the Capitol, seize the
Navy, and make himself ruler of America at one bold and bloody
stroke.[1201]

Commodore Truxtun then gave the simple and direct account, already
related, of Burr's conversation with him;[1202] Peter Taylor and Jacob
Allbright once more told their strange tales; and the three Morgans
again narrated the incidents of Burr's incredible acts and statements
while visiting the elder Morgan at Morganza.[1203]

William Love, an Englishman, formerly Blennerhassett's servant--a dull,
ignorant, and timorous creature--testified to the gathering of "_about
betwixt_ twenty and twenty-five" men at his employer's island, some of
whom went "out a gunning." He saw no other arms except those belonging
to his master, nor did he "see any guns presented," as Allbright had
described. Blennerhassett told him that if he would go with him to the
Washita, he should have "a piece of land." Love "understood the object
of the expedition was to settle Washita lands."[1204]

Dudley Woodbridge, once a partner of Blennerhassett, told of Burr's
purchase from his firm of a hundred barrels of pork and fifteen boats,
paid by a draft on Ogden of New York; of Blennerhassett's short
conversation with Woodbridge about the enterprise, from which he
inferred that "the object was Mexico"; of his settlement with
Blennerhassett of their partnership accounts; of Blennerhassett's
financial resources; and of the characteristics of the man--"very
nearsighted," ignorant of military affairs, a literary person, a chemist
and musician, with the reputation of having "every kind of sense but
common sense."

The witness related his observation of the seizure at Marietta of Burr's
few boats and provisions by the Ohio militia, and the sale of them by
the Government; of the assemblage of the twenty or thirty men on
Blennerhassett's island; of their quiet, orderly conduct; of Comfort
Tyler's declaration "that he would not resist the constituted
authorities, but that he would not be stopped by a mob"; of Mrs.
Blennerhassett's taking part of her husband's library with her when she
followed him, after the flight of the terrified little band from the
island; and of the sale of the remainder of the cultivated visionary's
books.[1205]

Simeon Poole, who had been sent by Governor Tiffin of Ohio to arrest
Blennerhassett, said that he was not on the island, but from dusk until
ten o'clock watched from a concealed place on the Ohio shore. He saw a
few men walking about, who during the night kindled a fire, by the light
of which it seemed to Poole that some of them were "armed." He could not
be sure from where he watched, but they "looked like sentinels."
However, Poole "could not say whether the persons ... were not merely
loitering around the fire." There were some boats, he said, both big
and little. Also, when anybody wanted to cross from the Ohio side,
the acute Poole thought that "a watchword" was given. The night
was cold, the rural sleuth admitted, and it was customary to build
fires on the river-bank. He observed, however, another suspicious
circumstance--"lanterns were passing ... between the house and boats....
Most of the people were without guns," he admitted; but, although he
could not see clearly, he "apprehended that some of them had
guns."[1206]

Morris P. Belknap, an Ohio business man, testified that he had hailed a
boat and been taken to the island on the night when the gathering and
flight took place.[1207] He saw perhaps twenty men in the house; "two or
three ... near the door, had rifles, and appeared to be cleaning them.
These were all the arms I saw." He also observed two or three
boats.[1208]

Edmund P. Dana testified that, with two other young men, he had gone in
a skiff to the island on that war-levying night.[1209] In the hall he
saw about "fifteen or sixteen" men--"one of them was running some
bullets." Dana was shown to another room where he met "colonel Tyler,
Blennerhassett, Mr. Smith of New-York ... and three or four other
gentlemen." He had met Tyler the day before, and was now "introduced to
Mr. Smith and Doctor M'Castle[1210] who had his lady ... there." The men
in the hall "did not appear to be alarmed" when Dana and his companions
came in. Dana "never saw colonel Burr on the island."[1211]

The Government's counsel admitted that Burr was in Kentucky at that
time.[1212]

Such was the testimony, and the whole of it, adduced to support the
charge that Burr had, at Blennerhassett's island, on December 13, 1806,
levied war against the United States. Such was the entire proof of that
overt act as laid in the indictment when Marshall was called upon to
make that momentous decision upon which the fate of Aaron Burr depended.

The defense moved that, since no overt act was proved as charged,
collateral testimony as to what had been said and done elsewhere should
not be received. Wickham opened the argument in an address worthy of
that historic occasion. For nearly two days this superb lawyer spoke.
Burr's counsel would, he said, have preferred to go on, for they could
"adduce ... conclusive testimony" as to Burr's innocence. But only seven
witnesses out of "about one hundred and forty" summoned by the
Government had been examined, and it was admitted that these seven had
given all the testimony in existence to prove the overt act.

If that overt act had not been established and yet the more than one
hundred and thirty remaining witnesses were to be examined, it was
manifest that "weeks, perhaps months," would elapse before the
Government completed its case. It was the unhealthy season, and it was
most probable that one or more jurors would become ill. If so, said
Wickham, "the cause must lie over and our client, innocent, may be
subjected to a prolongation of that confinement which is in itself ...
punishment." Yet, after all this suffering, expense, and delay, the
result must be the same as if the evidence were arrested now, since
there was no testimony to the overt act other than that already given.

[Illustration: _John Wickham_]

Did that testimony, then, prove the overt act of levying war on the
United States? Those who wrote the Constitution "well knew the dreadful
punishments inflicted and the grievous oppressions produced by [the
doctrine of] constructive treasons in other countries." For this reason,
truly declared Wickham, the American Constitution explicitly defined
that crime and prescribed the only way it could be proved. This could
not be modified by the common law, since the United States, as a Nation,
had not adopted it; and the purpose of the Constitution was to destroy,
as far as America was concerned, the British theory of treason. The
Constitution "explains itself," said Wickham; under it treason is a
newly created offense against a newly created government. Even the
Government's counsel "will not contend that the words [in the
Constitution concerning treason] used in their natural sense," can
embrace the case of a person who never committed an act of hostility
against the United States and was not even present when one was
committed;[1213] otherwise what horrible cruelties any Administration
could inflict on any American citizen.

The Supreme Court, in the case of Bollmann and Swartwout, had, indeed,
pronounced a "_dictum_" to the contrary, said Wickham, but that had been
in a mere case of commitment; the present point did not then come before
the court; it was not argued by counsel. So Marshall's objectionable
language in that case was not authority.[1214]

It was only by the doctrine of constructive treason that Burr could be
said to be at Blennerhassett's island at the time charged--the doctrine
that "in treason all are principals," and that, by "construction of
law," he was present, although in reality he was hundreds of miles away.
But this was the very doctrine which the Constitution prohibited from
ever being applied in America.

If Burr "conspired to levy war against the United States, and ... the
war was carried on by others in his absence, his offense can only be
punished by _a special indictment charging the facts as they existed_."
The prosecution "should at once withdraw their indictment as it does
not contain a specification that can be supported by the
evidence."[1215]

Edmund Randolph followed Wickham, but added nothing to his rich and
solid argument. Addressing Marshall personally, Randolph exclaimed:
"Amidst all the difficulties of the trial, I congratulate Your Honour on
having the opportunity of fixing the law, relative to this peculiar
crime, on grounds which will not deceive, and with such regard for human
rights, that we shall bless the day on which the sentence was given, to
prevent the fate of Stafford."[1216]

When Randolph closed, on Friday, August 21, Hay asked Marshall to
postpone further discussion until Monday, that counsel for the
Government might prepare their arguments.[1217] Burr's attorneys stoutly
objected, but Marshall wisely granted Hay's request.[1218] "Did you not
do an unprecedented thing," a friend asked Marshall, "in suspending a
criminal prosecution and granting two days, in the midst of the argument
on a point then under discussion, for counsel to get ready to speak upon
it?" "Yes," replied the Chief Justice, "I did and I knew it. But if I
had not done so I should have been reproached with not being _disposed_
to give the prosecutors an opportunity to answer."[1219]

Saturday and Sunday were more than time enough to light the fires of
MacRae's Scotch wrath. His anger dominated him to such an extent that he
became almost incoherent.[1220] Burr not a principal! "Let all who are
in any manner concerned in treason be principals," and treason will be
suppressed.[1221] MacRae, speaking the language of Jeffreys, had, in his
rage, forgotten that he had immigrated to America.

On Tuesday, August 25, although the court opened at nine o'clock,[1222]
the heat was so oppressive that nothing but the public interest--now
reaching the point of hysteria--could have kept the densely packed
audience in the stifling hall.[1223] But the spectators soon forgot
their discomfort. The youthful, handsome William Wirt enraptured them
with an eloquence which has lived for a century. It is impossible to
give a faithful condensation of this charming and powerful address, the
mingled courtesy and boldness of it, the apt phrase, the effective
imagery, the firm logic, the wealth of learning. Only examples can be
presented; and these do scant justice to the young lawyer's speech.

"When we speak of treason, we must call it treason.... Why then are
gentlemen so sensitive ... as if instead of a hall of justice, we were
in a drawing-room with colonel Burr, and were barbarously violating
towards him every principle of decorum and humanity?[1224] This motion
[to arrest the testimony] is a bold and original stroke in the noble
science of defence," made to prevent the hearing of the evidence. But he
knew that Marshall would not "sacrifice public justice, committed to
[his] charge, by aiding this stratagem to elude the sentence of the
law."[1225]

Why had Wickham said so little of American and so much of British
precedents, vanishing "like a spirit from American ground and ...
resurging by a kind of intellectual magic in the middle of the 16th
century, complaining most dolefully of my lord Coke's bowels." It was to
get as far as possible away from Marshall's decision in the case of
Bollmann and Swartwout. If Marshall's opinion had been favorable,
Wickham "would not have ... deserted a rock so broad and solid, to walk
upon the waves of the Atlantic." Wirt made the most of Marshall's
careless language.[1226]

The youthful advocate was impressing Marshall as well as jury and
auditors. "Do you mean to say," asked the Chief Justice, "that it is not
necessary to state in the indictment in what manner the accused, who it
is admitted was absent, became connected with the acts on
Blennerhassett's island?" In reply Wirt condensed the theory of the
prosecution: "I mean to say, that the _count_ is _general_ in modern
cases; that we are endeavoring to make the accused a traitor by
connection, by stating the act which was done, and which act, from his
conduct in the transaction, he made his own; that it is sufficient to
make this charge generally, not only because it is authorized by the
constitutional definition, but because it is conformable to modern
cases, in which the indictments are pruned of all needless
luxuriances."[1227]

Burr's presence at the island necessary! If so, a man might devise and
set in motion "the whole mechanism" of treason, "go a hundred miles"
away, let it be operated by his agents, "and he is innocent, ... while
those whom he has deluded are to suffer the death of traitors." How
infamous! Burr only the accessory and Blennerhassett the principal!
"Will any man believe that Burr who is a soldier bold, ardent, restless
and aspiring, the great actor whose brain conceived and whose hand
brought the plot into operation, should sink down into an accessory and
Blennerhassett be elevated into a principal!"

Here Wirt delivered that passage which for nearly a hundred years was to
be printed in American schoolbooks, declaimed by American youth, and to
become second only to Jefferson's Proclamation, Messages, and letters,
in fixing, perhaps irremovably, public opinion as to Aaron Burr and
Harman Blennerhassett.[1228] But his speech was not all rhetoric.
Indeed, no advocate on either side, except John Wickham and Luther
Martin, approached him in analyses of authorities and closeness of
reasoning.[1229]

"I cannot promise you, sir, a speech manufactured out of tropes and
figures," remarked Botts in beginning his reply. No man better could
have been found to break the force of the address of his young brother
of the bar. Wirt had defaced his otherwise well-nigh perfect address by
the occasional use of extravagant rhetoric, some of which, it appears,
was not reported. Botts availed himself of one such display to make
Wirt's argument seem absurd and trivial: "Instead of the introduction of
a sleeping Venus with all the luxury of voluptuous and wanton nakedness
to charm the reason through the refined medium of sensuality, and to
convince us that the law of treason is with the prosecution by leading
our imaginations to the fascinating richness ... of heaving bosom and
luscious waist, I am compelled to plod heavily and meekly through the
dull doctrines of Hale and Foster." Botts continued, with daring but
brilliant satire, to ridicule Wirt's unhappy rhetoric.[1230] Soon
spectators, witnesses, jury, were in laughter. The older lawyers were
vastly amused. Even Marshall openly enjoyed the humor.

His purpose thus accomplished, Botts now addressed himself to the
evidence, to analyze which he had been assigned. And a perfect job he
made of it. He spoke with impetuous rapidity.[1231] He reviewed the
events at Blennerhassett's island: "There _was war_, when there was
confessedly no war; and it happened although it was prevented!" As to
arms: "No arms were necessary ... they might make war with their
fingers." Yes, yes, "a most bloody war indeed--and ten or twelve boats."
Referring to the flight from Blennerhassett's island, the sarcastic
lawyer observed: "If I run away and hide to avoid a beating I am guilty
and may be convicted of assault and battery!" What "simpletons" the
people of Kentucky and Mississippi had been! "They hunted but could not
find the war," although there it was, right among them![1232]

What was the moving force back of the prosecution? It was, charged
Botts, the rescue of the prestige of Jefferson's Administration. "It has
not only been said here but published in all the newspapers throughout
the United States, that if Aaron Burr should be acquitted it will be the
severest satire on the government; and that the people are called upon
to support the government by the conviction of colonel Burr; ... even
jurymen have been taught by the common example to insult him."

No lie was too contemptible to be published about him. For instance,
"when the grand jury returned a true bill, he was firm, serene, unmoved,
composed--no change of countenance.... Yet the next day they announced
in the newspapers," declared Botts, "that he was in a state of
indescribable consternation and dismay." Worse still, "every man who
dares to look at the accused with a smile or present him the hand of
friendship" is "denounced as a traitor."[1233]

Black but faithful was the picture the fearless lawyer drew of the
Government's conduct.[1234] He dwelt on the devices resorted to for
inflaming the people against Burr, and after they had been aroused, the
demand that public sentiment be heeded and the accused convicted. Was
that the method of justice! If so, where was the boasted beneficence of
democracies? Where the righteousness and wisdom of the people? What did
history tell us of the justice or mercy of the people? It was the people
who forced Socrates to drink hemlock, banished Aristides, compelled the
execution of Admiral Byng. "Jefferson was run down in 1780[1235] by the
voice of the people." If the law of constructive treason were to be
adopted in America and courts were to execute the will of the people,
alas for any man, however upright and innocent, whom public opinion had
been falsely led to condemn.[1236]

Hay, who had been ill for several days[1237] and was badly worn, spoke
heavily for the greater part of two days.[1238] His address, though
dull, was creditable; but he added nothing in thought or authorities to
Wirt's great speech. His principal point, which he repeated
interminably, was that the jury must decide both law and fact. In making
this contention he declared that Marshall was now asked by Burr's
counsel to do the very thing for which Chase had been impeached.[1239]
Time and again the District Attorney insinuated that impeachment would
be Marshall's fate if he did not permit the jury to hear all the
testimony.[1240]

Charles Lee, Attorney-General under President Adams, and an intimate
friend of Marshall,[1241] had joined Burr's legal forces some time
before. In opening his otherwise dry argument, Lee called Marshall's
attention to Hay's threat of impeachment. The exhausted District
Attorney finally denied that he meant such a thing, and Marshall mildly
observed: "I did not consider you as making any personal allusion, but
as merely referring to the law."[1242] Thus, with his kindly
tactfulness, Marshall put the incident aside.

On August 28, Luther Martin closed the debate. He had been drinking even
more than usual throughout the proceedings;[1243] but never was he in
more perfect command of all his wonderful powers. No outline of his
address will be attempted; but a few quotations may be illustrative.

It was the admitted legal right and "indispensable duty" of Burr's
counsel, began Martin, to make the motion to arrest the testimony; yet
for doing so "we have been denounced throughout the United States as
attempting to suppress the truth." Our act "has been held up to the
public and to this jury as conclusive proof of our guilt." Such,
declared the great lawyer, were the methods used to convict Burr.[1244]
He had been in favor, he avowed, of waiving "obvious and undeniable
rights," and of going on with the trial because he was convinced that
all the evidence would not only clear "his friend," but remove the
groundless prejudices which had so wickedly been excited against Burr.
But he had yielded to the judgment of his associates that the plan
adopted was more conformable to law.

"I shall ever feel the sincerest gratitude to heaven, that my life has
been preserved to this time, and that I am enabled to appear ... in his
defense." And if his fellow counsel and himself should be "successful in
rescuing a gentleman, for whom I with pleasure avow my friendship and
esteem, from the fangs of his persecutors ... what dear delight will my
heart enjoy!"[1245] Martin thanked Heaven, too, for the boon of being
permitted to oppose the "destructive" doctrine of treason advanced by
the Government. For hours he analyzed the British decisions which he
"thanked God ... are not binding authority in this country." He
described the origin and growth of the doctrine of constructive treason
and defined it with clearness and precision.[1246] It was admitted that
Burr was not actually present at the time and place at which the
indictment charged him with having committed the crime; but, according
to the Government, he was "constructively" present.

With perfect fearlessness Martin attacked Marshall's objectionable
language in the Bollmann and Swartwout opinion from the Supreme Bench:
"As a binding judicial opinion," he accurately declared, "it ought to
have no more weight than the ballad of Chevy Chase."[1247] Deftly he
impressed upon Marshall, Hay's threat of impeachment if the Chief
Justice should presume to decide in Burr's favor.[1248] Lamenting the
popular hostility toward Burr, Martin defied it: "I have with pain heard
it said[1249] that such are the public prejudice against colonel Burr,
that a jury, even should they be satisfied of his innocence, must have
considerable firmness of mind to pronounce him _not guilty_. I have not
heard it without horror.

"God of Heaven! have we already under our form of government (which we
have so often been told is best calculated of all governments to secure
all our rights) arrived at a period when a trial in a court of justice,
where life is at stake, shall be but ... a mere idle ... ceremony to
transfer innocence from the gaol to the gibbet, to gratify popular
indignation excited by bloodthirsty enemies!"

Martin closed by a personal appeal to Marshall: "But if it require in
such a situation firmness in a jury, so does it equally require
fortitude in judges to perform their duty.... If they do not and the
prisoner fall a victim, they are guilty of murder in _foro coeli_
whatever their guilt may be in _foro legis_.... May that God who now
looks down upon us, and who has in his infinite wisdom called you into
existence and placed you in that seat to dispense justice to your fellow
citizens, to preserve and protect innocence against persecution--may
that God so illuminate your understandings that you may _know_ what is
right; and may he nerve your souls with firmness and fortitude to _act_
according to that knowledge."[1250]

The last word of this notable debate had been spoken.[1251] The fate of
Aaron Burr and of American liberty, as affected by the law of treason,
now rested in the hands of John Marshall.

On Monday morning, August 31, the Chief Justice read his opinion. All
Richmond and the multitude of strangers within her gates knew that the
proceedings, which for four months had enchained the attention of all
America, had now reached their climax. Burr's friends were fearful, and
hoped that the laudanum calumny[1252] would "strengthen" Marshall to do
his duty.[1253] For the moment the passions of the throng were in
abeyance while the breathless spectators listened to Marshall's calm
voice as it pronounced the fateful words.

The opinion of the Chief Justice was one of the longest ever rendered by
him, and the only one in which an extensive examination of authorities
is made. Indeed, a greater number of decisions, treatises, and histories
are referred to than in all the rest of Marshall's foremost
Constitutional opinions. Like every one of these, the Burr opinion was a
state paper of first importance and marked a critical phase in the
development of the American Nation.

Marshall stated the points first to be decided: under the Constitution
can a man be convicted of treason in levying war who was not present
when the war was levied; and, if so, can testimony be received "to
charge one man with the overt acts of others until those overt acts as
laid in the indictment be proved to the satisfaction of the court"? He
made clear the gravity of the Constitutional question: "In every point
of view in which it can be contemplated, [it] is of infinite moment to
the people of this country and their government."[1254]

What was the meaning of the words, "'levying war'?... Had their first
application to treason been made by our constitution they would
certainly have admitted of some latitude of construction." Even so it
was obvious that the term "levying war" literally meant raising or
creating and making war. "It would be affirming boldly to say that those
only who actually constituted a portion of the military force appearing
in arms could be considered as levying war."

Suppose the case of "a commissary of purchases" for an army raised to
make war, who supplied it with provisions; would he not "levy war" as
much as any other officer, although he may never have seen the army? The
same was true of "a recruiting officer holding a commission in the rebel
service, who, though never in camp, executed the particular duty
assigned to him."

But levying war was not for the first time designated as treason by the
American Constitution. "It is a technical term," borrowed from an
ancient English statute[1255] and used in the Constitution in the sense
understood in that country and this at the time our fundamental law was
framed.

Not only British decisions, but "those celebrated elementary writers"
whose "books are in the hands of every student," and upon which "legal
opinions are formed" that are "carried to the bar, the bench and the
legislature"--all must be consulted in ascertaining the import of such
terms.[1256]

Marshall reviewed Coke, Hale, Foster, and Blackstone, and found them
vague upon the question "whether persons not in arms, but taking part in
a rebellion, could be said to levy war independent of that legal rule
[of constructive treason] which attaches the guilt of the principal to
an accessory." Nor were the British decisions more satisfactory: "If in
adjudged cases this question [has] been ... directly decided, the court
has not seen those cases."[1257] To trace the origin of "the doctrine
that in treason all are principals" was unimportant. However "spurious,"
it was the British principle settled for ages.

The American Constitution, however, "comprizes no question respecting
principal and accessory"--the traitor must "truly and in fact levy war."
He must "perform a part in the prosecution of the war."[1258]

Marshall then gingerly takes up the challenge of his opinion in the case
of Bollmann and Swartwout. Since it had been upon the understanding by
the grand jury of his language in that opinion that Burr had been
indicted for treason, and because the Government relied on it for
conviction so far as the prosecution depended on the law, the Chief
Justice took pains to make clear the disputed passages.

"Some gentlemen have argued as if the supreme court had adopted the
whole doctrine of the English books on the subject of accessories to
treason.[1259] But certainly such is not the fact. Those only who
perform a part, and who are leagued in the conspiracy, are declared to
be traitors. To complete the definition _both_ circumstances must occur.
They must 'perform a part' which will furnish the overt act; and they
must be 'leagued in the conspiracy.'"

Did the things proved to have happened on Blennerhassett's island amount
to the overt act of levying war? He had heard, said Marshall, that his
opinion in Bollmann and Swartwout was construed as meaning that "any
assemblage whatever for a treasonable purpose, whether in force or not
in force, whether in a condition to use violence or not in that
condition, is a levying of war." That view of his former opinion had
not, indeed, "been expressly advanced at the bar"; but Marshall
understood, he said, that "it was adopted elsewhere."[1260]

Relying exclusively on reason, all would agree, he continued, "that war
could not be levied without the employment and exhibition of force....
Intention to go to war may be proved by words," but the actual going to
war must "be proved by open deed."[1261]

This natural and reasonable understanding of the term was supported by
the authorities. Marshall then made specific reference to the opinions
of a large number of British writers and judges, and of all American
judges who had passed upon the question. In none of these, he asserted,
had "the words 'levying war' ... received a technical different from
their natural meaning"[1262]--that is, "the employment and exhibition of
force."

Had he overruled all these opinions in the Bollmann-Swartwout case? Had
he, in addition, reversed the natural interpretation of the Constitution
which reason dictated? Surely not! Yet this was what he was now charged
with having done.

But, said Marshall, "an opinion which is to overrule all former
precedents, and to establish a principle never before recognized, should
be expressed in plain and explicit terms." A mere implication was not
enough. Yet this was all there was to justify the erroneous construction
of his opinion in the case of Bollmann and Swartwout--"the omission of
the court to state that the assemblage which constitutes the fact of
levying war ought to be in force."[1263]

Marshall then went into an extended and minute analysis of his
misunderstood opinion, and painfully labored to show that he then
intended to say, as he now did say: that the act of levying war required
"an assemblage in force," and not merely "a secret furtive assemblage
without the appearance of force." The gathering "must be such as to
prove that [war] is its object." If it was not "a military assemblage in
a condition to make war, it was not a levying of war."[1264]

The indictment charged Burr with having levied war at a specific place
and stated the exact manner in which the act had been done; this was
necessary; otherwise the accused could not make adequate defense. So the
indictment "must be proved as laid"; otherwise "the charge of an overt
act would be a mischief instead of an advantage to the accused," and
would lead him from the true cause and nature of the accusation instead
of informing him respecting it.[1265]

The Government insisted that, although Burr "had never been with the
party ... on Blennerhassett's island, and was, at the time, at a great
distance and in a different state,... he was yet legally present, and
therefore may properly be charged in the indictment as being present in
fact." Thus, the question arose "whether in this case the doctrine of
constructive presence can apply." In answering it, John Marshall ended
the contention that so cruel a dogma can ever be applied in America.
This achievement was one of his noblest services to the American
people.[1266]

Again an imposing array of precedents was examined. "The man, who
incites, aids, or procures a treasonable act," is not, merely on that
account, "legally present when that act is committed."[1267] Of course,
other facts might require that a man should be considered to be present
although really absent; for example, if he were on the way there for the
purpose of taking part in the specific act charged, or if he were
stationed near in order to coöperate with those who actually did the
deed, he would be of them and associated with them in the perpetration
of that particular act.[1268] But otherwise he could not be said to be
present.

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 participator 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 participation, by proving that he
advised it, or that he committed other acts."[1269]

If Burr were guilty of treason in connection with the assemblage on
Blennerhassett'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 assemblage must be charged in
the indictment and proved by two witnesses, precisely as must actual
physical presence--since the procuring of the assemblage takes the place
of presence at it. "If in one case," declared Marshall, "the presence
of the individual make the guilt of the assemblage his guilt, and in the
other case the procurement by the individual make the guilt of the
assemblage 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 constitution
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
constitution 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 Constitution.
"Neither, where procurement supplies the want of presence, is the mind
to be conducted to the conclusion that the accused procured the
assembly, 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 constitution requires two." The true inference from "this
circumstance" was "that the advising of the fact is not within the
constitutional 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 assembled at Blennerhassett'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 pass
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 petit 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 Blennerhassett to betray Burr. On August 23 William Duane, editor
of the _Aurora_, and an intimate friend, supporter, and agent of
Jefferson, approached Blennerhassett for that purpose, and offered to go
to Washington, "now or at any time hereafter," in his behalf. Duane
assured him that the Administration would refuse him (Duane) "nothing he
should ask." But Blennerhassett repulsed Duane's advances.[1279]

Hay, angry and discomfited, entered a _nolle prosequi_ to the
indictments of Dayton, Blennerhassett, 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.

[Illustration: _John Marshall_
_From the portrait by Robert Matthew Sully, in the Corcoran Gallery of
Art, Washington, D.C._]

Finally, he ordered that Burr "be acquitted and discharged" as to the
indictment for treason, but to be held in five thousand dollars bail
under the indictment for misdemeanor. Jonathan Dayton and William
Langbourne offered themselves and were accepted as sureties; and on
September 3, after nearly nine weeks of imprisonment, Burr walked out of
court unhindered, no longer to be under lock and bar and armed
guard.[1287]

Merry were the scenes in the houses of Richmond society that night;
hilarious the rejoicing about the flowing board of Luther Martin; and,
confused and afflicted with a blurred anger, the patriotic multitude
talked resentfully of Marshall's decision. On one side it was said that
justice had prevailed and persecution had been defeated; on the other,
that justice had been mocked and treason protected. Hay, Wirt, and
MacRae were bitter and despondent; Edmund Randolph, Botts, Martin, and
Burr, jubilant and aggressive.

Many conflicting stories sprang up concerning Marshall--his majestic
bearing on the bench, his servility, his courage, his timidity. One of
these has survived: "Why did you not tell Judge Marshall that the people
of America demanded a conviction?" a disgusted Republican asked of Wirt.
"Tell _him_ that!" exclaimed Wirt. "I would as soon have gone to
Herschel, and told him that the people of America insisted that the moon
had horns as a reason why he should draw her with them."[1288]

The captain of the "conspiracy" had never lost heart, and, save when
angered by Marshall's seeming inconsistency and indecision, had
continued to be cheery and buoyant. Steadily he had assured his friends
that, when acquitted, he would again take up and put through his plans.
This thought now dominated him. Blennerhassett, upon visiting his chief,
found Burr "as gay as usual, and as busy in speculations on reorganizing
his projects for action as if he had never suffered the least
interruption," with better prospects for success than ever.[1289]

Quick to press his advantage, Burr the next morning demanded the
production of the letters called for in the subpoena _duces tecum_ to
Jefferson. These had not been forthcoming, and Burr asserted the
President to be in contempt of court and subject to punishment
therefor.[1290] Once more altercation flared up in debate. Hay said he
had one of the letters; that it had not "the most distant bearing on the
subject," and that he might prefer "to be put in prison" rather than
disclose its contents.[1291]

Jefferson had become very nervous about Marshall's order and plainly
feared that the Chief Justice might attempt to enforce it. The thought
frightened him; he had no stomach for a direct encounter. At last he
wished to compose the differences between himself and the obstinate and
fearless, if gentle-mannered, Marshall. So the President directed his
district attorney to tell the United States Marshal to obey no order of
the court and to intimate to the Chief Justice the wisdom of deferring
the vexed question until the next session of Congress.

He wrote, said Jefferson, "in a spirit of conciliation and with the
desire to avoid conflicts of authority between the high branches of the
government which would discredit equally at home and abroad." Naturally
Burr and his counsel would like "to convert this trial into a contest
between the judiciary & Exve Authorities"; but he had not "expected ...
that the Ch. Justice would lend himself to it." Surely Marshall's
"prudence and good sense" would not "permit him to press it."

But if Marshall was determined to attack Jefferson and "issue any
process which [would] involve any act of force to be committed on the
persons of the Exve or heads of departs," Hay was to give Jefferson
"instant notice, and by express if you find that can be done quicker
than by post; and ... moreover ... advise the marshal on his conduct as
he will be critically placed between us."

The "safest way" for that officer to pursue "will be to take no part in
the exercise of any act of force ordered in this case. The powers given
the Exve by the constn are sufficient to protect the other branches from
judiciary usurpation of pre-eminence, & every individual also from
judiciary vengeance, and the marshal may be assured of it's effective
exercise to cover him."

Such was Jefferson's threat to use force against the execution of the
process of the National courts. But the President went on: "I hope
however that the discretion of the C. J. will suffer this question to
lie over for the present, and at the ensuing session of the legislature
[Congress] he may have means provided for giving individuals the benefit
of the testimony of the Exve functionaries in proper cases, without
breaking up the government. _Will not the associate judge_ [Cyrus
Griffin] _assume to divide his court and procure a truce at least in so
critical a conjuncture?_"[1292]

When Hay acknowledged that he had one of the letters from Wilkinson to
Jefferson, a subpoena _duces tecum_ was served on the District
Attorney, notwithstanding his gallant declaration that he would not
produce it even if he were sent to jail for not doing so. Hay then
returned a copy of such parts of the letter as he thought "material for
the purposes of justice," declining to give those passages which
Jefferson deemed "confidential."[1293] Burr insisted on the production
of the entire letter.

Botts moved that the trial be postponed "till the letter shall be
produced." Another of that unending series of arguments followed,[1294]
and still another of Marshall's cautious but convincing opinions came
forth. Jefferson, he said, had not forbidden the production of the
letter--the President, in response to the subpoena upon him, had sent
the document to Hay, leaving to the discretion of the District Attorney
the question as to what should be done with it. Of course if, for public
reasons, Jefferson had declined to produce the letter, his "motives may
[have been] such as to restrain the court" from compelling him to do
so.[1295] At least Burr might see the letter now; consideration of the
other features of the controversy would be deferred.[1296]

The distracted Hay, his sour temper made more acid by a "greatly
aggravated influenza," wrote Jefferson of the Government's predicament;
Marshall's remarks from the bench had not been explicit, he said, and
"it is impossible to foresee what his opinion will be unless I could
foresee what will be the state of his nerves. Wirt, who has hitherto
advocated the _integrity_ of the Chief Justice, now abandons him."

The District Attorney dolefully tells the President that he is "very
decidedly of the opinion, that these prosecutions will terminate in
nothing." He thinks the Government will be defeated on the trials for
misdemeanor, and believes the indictments for that offense should be
dismissed and motion made for the commitment of Burr, Blennerhassett,
and Smith to be transferred to some spot where their crime might be
proved. "Instruct me," he begs Jefferson, "specially on this
point."[1297]

Jefferson, now on his vacation at Monticello, directed Hay to press at
Richmond the trial of Burr for misdemeanor. "If defeated it will heap
coals of fire on the head of the judge; if convicted, it will give them
time to see whether a prosecution for treason can be instituted against
him in any, and what court." A second subpoena _duces tecum_ seems to
have been issued against Jefferson,[1298] and he defiantly refused to
"sanction a proceeding so preposterous," by "any notice" of it.[1299]
And there this heated and dangerous controversy appears to have
ended.[1300]

Finally, the hearing of evidence began on the indictment against Burr
for misdemeanor--for having conducted an attack upon Mexico. For seven
weeks the struggle went on. The Government's attorneys showed the
effects of the long and losing fight. Many witnesses were sent home
unexamined or merely leaving their affidavits. Hay acted like the sick
man he really was. The dour MacRae appeared "utterly chop-fallen; an
object of disgust to his friends, and pity to his enemies."[1301] Only
Wirt, with his fine gallantry of spirit, bore himself manfully.
Motions, arguments, opinions continued. One of Marshall's rulings on
the admissibility of evidence moved Blennerhassett to ecstasies.[1302]

More than fifty witnesses were examined, the heavy preponderance of the
evidence clearly showing that Burr's purpose and expectations had been
to settle the Washita lands and, in case the United States went to war
with Spain, and _only in that event_, to lead a force against the
Spaniards. No testimony whatever was given tending to disclose any
hostile plans against the United States, or even for an attack upon
Mexico without war between America and Spain, except that of Wilkinson,
Eaton, Taylor, Allbright, and the Morgans, as already set out. One
witness also told of a wild and fanciful talk by the eccentric and
imaginative Blennerhassett.[1303]

The credibility of Dunbaugh was destroyed. Wilkinson was exposed in a
despicable light,[1304] and Eaton appeared more fantastic than ever; but
both these heroes put on looks of lofty defiance. The warrior-diplomat
of Algerian fame had now fallen so low in the public esteem that one
disgusted Virginian had threatened to kick him out of a room.[1305]

On September 15, 1807, the District Attorney, by attempting to enter a
_nolle prosequi_ on the indictment of Burr for misdemeanor, tried to
prevent the jury from rendering a verdict.[1306] One member of the jury
wanted that body to return a special finding; but his associates would
have none of it, and in half an hour they reported a straight verdict of
"Not Guilty."[1307]

Hay dismissed further proceedings against Smith and Blennerhassett on
the indictments for misdemeanor, and then moved to commit Burr and his
associates upon the charge of treason by "levying war" within the
jurisdiction of the United States Court for the District of Ohio.[1308]
On this motion, Marshall, as an examining magistrate, gave the
Government wide scope in the introduction of testimony, to the immense
disgust of the triply accused men. Blennerhassett thought that Marshall
was conciliating "public prejudice."[1309] Burr told his counsel that
the Chief Justice "did not for two days together understand either the
questions or himself ... and should in future be put right by strong
language." So angered was he with Marshall's "wavering," that at times
"Burr ... would not trust himself to rise up to sum up and condense the
forces displayed by his counsel, into compact columns, after the
engagement, toward the close of the day, as is generally his
practice."[1310]

Just at this time appeared a pamphlet[1311] by Marshall's
brother-in-law, Joseph Hamilton Daveiss. Jefferson had removed him from
the office of United States Attorney for the District of Kentucky
because of Daveiss's failure in his attacks on Burr, and the revengeful
Federalist lawyer and politician retaliated by abusing the President,
Wilkinson, and Burr equally. Between Daveiss's pamphlet and Marshall's
sudden admission of evidence, some saw a direct connection; the previous
knowledge Marshall must have had of his brother-in-law's intended
assault, inferred because of "the well-known spirit of clanship and
co-operation with which the Marshalls and all their connections are so
uniformly animated," showed, it was alleged, that the Chief Justice was
working with his kinsman to bring down in indiscriminate ruin,
Jefferson, Burr, and Wilkinson together.

The last volume of Marshall's "Life of Washington," that "five volumed
libel," as Jefferson branded the biography, had recently appeared.
Blennerhassett, who, in expressing his own opinions, usually reflected
those of his associates, had "no doubt" that the President's perusal of
Marshall's last volume and Daveiss's pamphlet "inspired Jefferson with a
more deadly hatred of the Marshall faction than he has ever conceived of
all the Burrites he ever heard of."[1313]

The President's partisans in Virginia were prompt to stoke the furnace
of his wrath. William Thompson of Petersburgh[1314] wrote a brief "view"
of the Burr trial and sent "the first 72. pages" to Jefferson, who read
them "with great satisfaction" and clamored for more.[1315] Marshall's
conduct should indeed fill everybody "with alarm," wrote Jefferson in
reply. "We had supposed we possessed fixed laws to guard us equally
against treason & oppression. But it now appears we have no law but the
will of the judge. Never will chicanery have a more difficult task than
has been now accomplished to warp the text of the law to the will of him
who is to construe it. Our case too is the more desperate as to attempt
to make the law plainer by amendment is only throwing out new materials
for sophistry."[1316]

The Federalists in Washington, fast dwindling in power and number,
experienced as much relief as their chronic melancholia permitted them
to enjoy. "Had the late vice president and two senators been convicted
and executed for treason, it would in the opinion of Europe, have
reflected disgrace upon our country," notes Senator Plumer in his
diary.[1317]

Hay, on the other hand, thought that "a correct and perspicuous legal
history of this trial would be a valuable document in the hands of
intelligent legislators," but that "among others it might perhaps do
mischief. It might produce a sentiment toward all judicial system and
law itself, the operation of which might perhaps be fatal to the
tranquillity and good order of Society."[1318]

On October 20, Marshall delivered his last opinion in the Burr trials.
It was upon the Government's motion to commit Burr and his associates
for treason and misdemeanor committed on the dismal island at the mouth
of the Cumberland, where Burr had first greeted his little band of
settlers and potential adventurers. He must grant the motion, Marshall
said, "unless it was perfectly clear that the act was innocent." If
there was any doubt, the accused must be held. The Chief Justice then
carefully analyzed all the evidence.[1319] He concluded that Burr's
purposes were to settle the Washita lands and to invade Mexico if
opportunity offered, perhaps, however, only in the event of war with
Spain. But whether this was so ought to be left to the jury; Marshall
would "make no comment upon it which might, the one way or the other,
influence their judgment."[1320] He therefore would commit Burr and
Blennerhassett "for preparing and providing the means for a military
expedition" against Spain.

"After all, this is a sort of drawn battle," Burr informed Theodosia.
"This opinion was a matter of regret and surprise to the friends of the
chief justice and of ridicule to his enemies--all believing that it was
a sacrifice of principle to conciliate _Jack Cade_. Mr. Hay immediately
said that he should advise the government to _desist from further
prosecution_."[1321]

If Marshall disappointed Burr, he infuriated Jefferson. In the closing
words of his opinion the Chief Justice flung at the President this
challenge: "If those whose province and duty it is to prosecute
offenders against the laws of the United States shall be of the opinion
that a crime of a deeper dye has been committed, it is at their choice
to act in conformity with that opinion"--in short, let Jefferson now do
his worst.

Marshall's final opinion and his commitment of Burr, under bail, to be
tried in Ohio for possible misdemeanor at the mouth of the Cumberland
should a grand jury indict him for that offense, disgusted Burr. Indeed
he was so "exasperated" that "he was rude and insulting to the
Judge."[1322] Nor did Marshall's friends in Richmond feel differently.
They "are as much dissatisfied," records Blennerhassett, "with his
opinion yesterday as Government has been with all his former decisions.
He is a good man, and an able lawyer, but timid and yielding under the
fear of the multitude, led ... by the vindictive spirit of the party in
power."[1323]

Burr gave the bond of five thousand dollars required by Marshall, but in
Ohio the Government declined to pursue the prosecution.[1324] Burr put
the whole matter out of his mind as a closed incident, left Richmond,
and started anew upon the execution of his one great plan as though the
interruption of it had never happened.

Marshall hurried away to the Blue Ridge. "The day after the commitment
of Col^o. Burr for a misdemeanor I galloped to the mountains," he tells
Judge Peters. During the trial Peters had sent Marshall a volume of his
admiralty decisions; and when he returned from his belated vacation, the
Chief Justice acknowledged the courtesy: "I have as yet been able only
to peep into the book.... I received it while fatigued and occupied with
the most unpleasant case which has ever been brought before a Judge in
this or perhaps any other country, which affected to be governed by
laws, since the decision of which I have been entirely from home.... I
only returned in time to perform my North Carolina Circuit which
terminates just soon enough to enable me to be here to open the Court
for the antient dominion. Thus you perceive I have sufficient bodily
employment to prevent my mind from perplexing itself about the
attentions paid me in Baltimore and elsewhere.[1325]

"I wish I could have had as fair an opportunity to let the business go
off as a jest here as you seem to have had in Pennsylvania: but it was
most deplorably serious & I could not give the subject a different
aspect by treating it in any manner which was in my power. I might
perhaps have made it less serious to my self by obeying the public will
instead of the public law & throwing a little more of the sombre upon
others."[1326]

While Marshall was resting in the mountains, Jefferson was writing his
reply to the last challenge of the Chief Justice.[1327] In his Message
to Congress which he prepared immediately after the Burr trials, he
urged the House to impeach Marshall. He felt it to be his duty, he said,
to transmit a record of the Burr trial. "_Truth & duty alone extort the
observation that wherever the laws were appealed to in aid of the public
safety, their operation was on behalf of those only against whom they
were invoked._" From the record "you will be enabled to judge whether
the defect was in the testimony, or in the laws, or _whether there is
not a radical defect_ in the administration of the law? And wherever it
shall be found the legislature alone can apply or originate the remedy.

"The framers of our constitution certainly supposed they had guarded, as
well their government against destruction by treason, as their citizens
against oppression under pretence of it: and if _the pliability of the
law as construed in the case of Fries,[1328] and it's wonderful
refractoriness as construed in that of Burr, shew that neither end has
been attained, and induce an awful doubt whether we all live under the
same law. The right of the jury too to decide law as well as fact seems
nugatory without the evidence pertinent to their sense of the law._ If
these ends are not attained it becomes worthy of enquiry by what means
more effectual they may be secured?"[1329]

On the advice of his Cabinet,[1330] Jefferson struck out from the
Message the sentences italicized above. But even with this strong
language omitted, Congress was told to impeach Marshall in far more
emphatic terms than those by which Jefferson had directed the
impeachment of Pickering--in plainer words, indeed, than those privately
written to Nicholson ordering the attack upon Chase. Jefferson's assault
on Marshall was also inserted in a Message dealing with probable war
against Great Britain and setting out the continuance of our unhappy
relations with Spain, "to our former grounds of complaint" against which
country had "been added a very serious one."[1331]

Had these grave conditions not engaged the instant attention of
Congress, had public sentiment--even with part of its fury drawn from
Burr to Great Britain--been heeded at the National Capital, there can
be little doubt that John Marshall would have been impeached by the
House that was now all but unanimously Republican, and would have been
convicted by the overwhelmingly Jeffersonian Senate.

Well for Marshall's peace of mind that he had secluded himself in the
solitudes of the Blue Ridge, for never was an American judge subjected
to abuse so unsparing. The Jeffersonian press, particularly the _Aurora_
and the _Enquirer_, the two leading Republican papers, went to the
limits of invective. "Let the judge be impeached," said the _Enquirer_;
the Wickham dinner was recalled--why had Marshall attended it? His
speech on the Jonathan Robins case[1332]--"the price of his seat on the
bench"--was "a lasting monument of his capacity to defend error."

Marshall's "wavering and irresolute spirit" manifested throughout the
trial had disgusted everybody. His attempt to make his rulings
"palatable to all parties" had "so often wrapt them in obscurity" that
it was hard "to understand on which side the court had decided." His
conduct had been inspired by "power illicitly obtained." And think of
his encouragement to Burr's counsel to indulge in "unbounded ... slander
and vilification" of the President! Callender's libel on Adams was
insipid compared with Martin's vulgar billingsgate toward Jefferson! But
that "awful tribunal"--the people--would try Marshall; before it
"evidence will neither be perverted nor suppressed.... The character of
the Chief Justice awaits the issue."[1333]

Another attack soon followed. Marshall's disgraceful conduct "has proved
that the Judges are too independent of the people." Let them be made
removable by the President on the address of Congress. The Chase trial
had shown that impeachment could not be relied on to cleanse the bench
of a judge no matter how "noxious," "ridiculous," "contemptible," or
"immoral" he might be. But "shall an imposter be suffered to preside on
the bench of justice?... Are we to be eternally pestered with that most
ridiculous and dangerous cant; that the people ... are incompetent to
their own government: and that masters must be set over them and that
barriers are to be raised up to protect those masters from the vengeance
of the people?"[1334]

Next came a series of "Letters to John Marshall," which appeared
simultaneously in the _Aurora_ and the _Enquirer_. They were written by
William Thompson under the _nom de guerre_ of "Lucius"; he undoubtedly
was also the author of the earlier attacks on the Chief Justice in the
_Enquirer_. They were widely copied in the Republican press of the
country, and were a veracious expression of public sentiment.

"Your country, sir, owes you a debt of gratitude for former favors,"
which cannot be paid because "the whole stock of national indignation
and contempt would be exhausted, before the half of your just claim
could be discharged." Marshall had earned "infamy and detestation" by
his efforts to erect "tyranny upon the tomb of freedom." His skill "in
conducting the manouvres of a political party," his "crafty cunning" as
a diplomat, had been perpetuated by the "genius" of John Thompson, whose
"literary glory ... will shine when even the splendour of your talents
and your crimes shall have faded forever. When your volumes of apology
for British insolence and cruelty[1335] shall be buried in oblivion, the
'Letters of Curtius'[1336] will ... 'damn you to everlasting fame.'"
Marshall's entire life, according to Lucius, had been that of a sly,
bigoted politician who had always worked against the people. He might
have become "one of the boasted patriots of Virginia," but now he was "a
disgrace to the bench of justice." He was a Jeffreys, a Bromley, a
Mansfield.[1337]

Quickly appeared a second letter to Marshall, accusing him of having
"prostrated the dignity of the chief justice of the United States."
Lucius goes into a lengthy analysis of Marshall's numerous opinions in
the Burr trials. A just review of the proceedings, he said, demonstrates
that the Chief Justice had "exhibited a culpable partiality towards the
accused, and a shameless solicitude ... to implicate the government ...
as negligent of their duty"--something that "a less malicious
magistrate" never would have dared to display.[1338] A third letter
continued the castigation of Marshall and the defense of Jefferson.
Closing an extended argument on this joint theme, Lucius addressed
Marshall thus: "Common sense, and violated justice, cry aloud against
such conduct; and demand against you the enforcement of these laws,
which you refuse to administer."[1339]

All these arraignments of Marshall had, as we have seen,[1340] been
submitted to Jefferson. They rose in the final letter to a climax of
vituperation: "Could I be instrumental in removing you from the
elevation which you have dishonored by ... your crimes, I would still
trace you ... for screening a criminal and degrading a judge" by the
"juggle of a judicial farce." Marshall and Burr were alike "morally
guilty," alike "traitors in heart and in fact.... Such a criminal and
such a judge, few countries ever produced.... You are forever doomed to
blot the fair page of American history, to be held up, as examples of
infamy and disgrace, of perverted talents and unpunished criminality, of
foes to liberty and traitors to your country."[1341]

Incited by similar attacks in the Republican press of Baltimore,[1342]
the more ardent patriots of that place resolved publicly to execute
Marshall in effigy, along with Burr, Blennerhassett, and Martin, On the
morning of November 3, satirical handbills, announcing this act of
public justice, were scattered over the city:

    "AWFUL!!!

    "The public are hereby notified that four 'choice spirits' are
    this afternoon, at 3 o'clock, to be marshaled for execution by
    the hangman, on Gallows Hill, in consequence of the sentence
    pronounced against them by the unanimous voice of every honest
    man in the community.

    "The respective crimes for which they suffer are thus stated in
    the record:

    "First, Chief Justice M. for a repetition of his X.Y.Z. tricks,
    which are said to be much aggravated by his _felonins_ [_sic_]
    capers in open Court, on the plea of irrelevancy;

    "Secondly, His Quid Majesty [Burr], charged with the trifling
    fault of wishing to divide the Union, and farm _Baron_
    Bastrop's grant;

    "Thirdly, B[lennerhassett], the chemist, convicted of
    conspiracy to destroy the tone of the public Fiddle;

    "Fourthly, and lastly, but not least, _Lawyer_ Brandy-Bottle,
    for a false, scandalous, malicious Prophecy, that, before six
    months, 'Aaron Burr would divide the Union.'

    "N.B. The execution of accomplices is postponed to a future
    day."[1343]

Martin demanded of the Mayor the protection of the law. In response,
police were sent to his house and to the Evans Hotel where
Blennerhassett was staying. Burr and the faithful Swartwout, who had
accompanied his friend and leader, were escorted by a guard to the stage
office, where they quickly left for Philadelphia.[1344] Martin's law
students and other friends armed themselves to resist violence to him.

A policeman named Goldsmith notified Blennerhassett that a great mob
was gathering, "had everything prepared for tarring and feathering and
would, ... if disappointed or opposed, tear Martin [and Blennerhassett]
to pieces." The manager of the hotel begged Blennerhassett to hide in
the garret of the hostelry. This the forlorn Irishman did, and beheld
from a window in the attic what passed below.

Shouting and huzzaing men poured by, headed by fifers and drummers
playing the "Rogue's march." Midway in the riotous throng were drawn two
carts containing effigies of Chief Justice Marshall and the other
popularly condemned men "habited for execution.... Two troops of cavalry
patrolled the streets, not to disperse the mob, but to follow and behold
their conduct." At Martin's house the crowd stopped for a moment,
hurling threats and insults, jeering at and defying the armed defenders
within and "the cavalry without."

Making "as much noise as if they were about to destroy the city," these
devotees of justice and liberty proceeded to the place of public
execution. There, amid roars of approval, the effigy of John Marshall,
Chief Justice of the United States, was hanged by the neck until the
executioner pronounced the stuffed figure to be dead. About him dangled
from the gibbet the forms of the "traitors"--Aaron Burr and Harman
Blennerhassett--and also that of Luther Martin, who had dared to defend
them and had thus incurred the malediction of Thomas Jefferson and "the
people."[1345]

In the Senate Giles reported a bill to punish as traitors persons who
permitted or aided in the perpetration of certain acts, "although not
personally present when any such act was done"; and he supported it in
an argument of notable ability. He powerfully attacked Marshall,
analyzed his opinions in the Burr case, contrasted them with those of
other National judges, and pointed out the resulting confusion in the
interpretation of the law. All this was spoken, however, with careful
regard to the rules of parliamentary discussion.[1346]

Legislation was necessary, said Giles; as matters stood, the decisions
of judges on treason were like Congress "enacting our speeches,
interspersed with our laws." With what result? No two judges have yet
delivered the same opinion upon some of the most essential features of
treason. Take for example the British doctrine that, in treason,
accessories are principals. Were they in America? "Judge Chase and
others say they are. Judge Marshall says he does not know whether they
are or not, but his reasoning would go to show that they are not."[1347]

Solely to gratify _vox populi_, the Senate next indulged in a doubtful
performance. An attempt was made to expel Senator John Smith of Ohio.
With only a partial examination, and without allowing him to call a
single witness in his own behalf beforehand, a special Senate
Committee[1348] presented a report concluding with a resolution to expel
Smith because of "his participation in the conspiracy of Aaron Burr
against the peace, union and liberties of the people of the United
States."[1349] This surprising document was the work of John Quincy
Adams,[1350] who apparently adopted the ideas and almost the language of
Lucius.

Burr's conspiracy, wrote Adams, was so evil and was "established by such
a mass of concurring and mutually corroborative testimony" that the
"honor" of the Senate and "the deepest interests of this nation"
required that nobody connected with it should be a member of Congress.
After an unctuous recitation of accepted generalities and a review of
the expulsion of Senator Blount, together with an excellent statement of
the law of parliamentary bodies in such cases, Adams got down to the
business of destroying John Marshall.[1351]

Marshall had "withheld from the jury ... a great part of the testimony
which was essential to [Burr's] conviction.... In consequence of this
suppression of evidence" the trial jury had not been allowed to find a
verdict of guilty against the traitor. Marshall's "decisions, forming
the basis of the issue upon the trials of Burr ... were the sole
inducements upon which the counsel for the United States abandoned the
prosecution against him" (Smith). An American grand jury had charged
Senator Smith with being "an accomplice" of these diabolical plans, and
the safety which Marshall's decisions in the Burr trial had thrown
around Smith and other associates of the traitor "cannot, in the
slightest degree, remove the imputation" which the indictment of Smith
had brought to his door.

"If," wrote Adams, "the daylight of evidence combining one vast
complicated intention, with overt acts innumerable, be not excluded from
the mind by the curtain of artificial rules, the simplest understanding
cannot but see what the subtlest understanding cannot disguise, crimes
before which ordinary treason whitens into virtue" and beyond "the
ingenuity of a demon."

Adams continued: "Whether the transactions proved against Aaron Burr did
or did not amount, in technical language, to an overt act of levying
war, your committee have not a scruple of doubt ... that, but for the
vigilance and energy of the government, and of faithful citizens under
its directions ... in crushing his designs, they would ... have
terminated not only in war, but in a war of the most horrible
description, ... at once foreign and domestic."

To such lengths can popular demand, however unjust, drive even cold,
unemotional, and upright men who are politically ambitious. Adams's
Federalist confrères reacted quickly;[1352] and the _New York Evening
Post_ sharply criticized him.[1353] When the report came up in the
Senate, James A. Bayard of Delaware, and James Hillhouse of Connecticut,
attacked it and its author with "unusual virulence." Bayard was
especially severe.[1354] Thus assailed, Adams was cast into black
depression: "It is indeed a fiery ordeal I have to go through. God speed
me through it!" he wrote in his diary that night.[1355]

William Branch Giles cast the deciding vote which defeated Adams's
resolution--the Senate refusing to expel Smith by a vote of 19 yeas to
10 nays,[1356] just one short of the necessary two thirds. The Virginia
Republican Senator attacked the resolution with all his fiery eloquence,
and compelled the admiration even of Adams himself.[1357] "I shall vote
against the resolution," Giles concluded, "solely from the conviction of
the innocence of the accused."[1358]

Herefrom one may judge the temper of the times and the perilous waters
through which John Marshall had been compelled to pilot the craft of
justice. If that "most deliberative legislative body" in our Government,
and the one least affected by popular storms, was so worked upon, one
can perceive the conditions that surrounded the Chief Justice in
overcrowded Richmond during the trial of Aaron Burr, and the real
impending danger for Marshall, after the acquittal of the man whom
Jefferson and the majority had branded with the most hideous infamy.

Fortunate, indeed, for the Chief Justice of the United States, and for
the stability of American institutions, that the machinery of
impeachment was, during these fateful months, locked because the
President, Congress, and the Nation were forced to give their attention
to the grave foreign situation which could no longer be ignored.

Going about his duties in Washington, or, at home, plodding out to the
farm near Richmond, joking or gossiping with friends, and caring for his
afflicted wife, Marshall heard the thunders of popular denunciation
gradually swallowed up in the louder and ever-increasing reverberations
that heralded approaching war with Great Britain. Before the clash of
arms arrived, however, his level common sense and intelligent courage
were again called upon to deal with another of those perplexing
conditions which produced, one by one, opinions from the Supreme Bench
that have become a part of the living, growing, yet stable and enduring
Constitution of the American Nation.


FOOTNOTES:

[1153] _Blennerhassett Papers_: Safford, 298.

Blennerhassett wrote this comment when the trial was nearly over. He
said that two hundred men acted as a bodyguard to Burr on his way to
court each day.

[1154] Parton: _Burr_, 481.

[1155] April 1, 1807, "Register," Plumer MSS. Lib. Cong.

[1156] Swartwout was then twenty-four years old.

[1157] Parton: _Jackson_, I, 335.

[1158] Swartwout challenged Wilkinson after the trial was over.

[1159] See brief account of this incident, including Swartwout's open
letter to Wilkinson, in _Blennerhassett Papers_: Safford, footnote to
459-60.

[1160] Wilkinson to Jefferson, June 17, 1807, "Letters in Relation,"
MSS. Lib. Cong.

[1161] Jefferson to Wilkinson, June 21, 1807, Wilkinson: _Memoirs_, II,
Appendix XXX. Jefferson's letter also contains the following: "You have,
indeed, had a fiery trial at New Orleans, but it was soon apparent that
the clamorous were only the criminal, endeavouring to turn the public
attention from themselves, and their leader, upon any other object....
Your enemies have filled the public ear with slanders, and your mind
with trouble, on that account. The establishment of their guilt,
will ... place you on higher ground in the public estimate, and public
confidence."

[1162] _Burr Trials_, I, 227-53.

[1163] _Ib._ 257-67. Wilkinson was then giving his testimony before the
grand jury.

[1164] _Ib._ 268-72.

[1165] _Ib._ 276-77.

[1166] _Ib._ 277-305.

[1167] See _supra_, 455-56.

[1168] _Burr Trials_, I, 306.

[1169] _Ib._ 308.

[1170] Irving to Miss Fairlie, July 7, 1807, Irving, I, 152.

[1171] _Burr Trials_, I, 312.

[1172] _Ib._ 313-50.

[1173] _Burr Trials_, I, 350-54.

[1174] _Ib._ 354-57.

[1175] See Adams: _U.S._ II, chap. I; Channing: _Jeff. System_, 189-94;
Hildreth, III, 402; and see vol. IV, chap. I, of this work.

[1176] Jefferson's Proclamation, July 2, 1807, _Works_: Ford, X, 434.

[1177] Randolph to Nicholson, June 25, 1807, Adams: _John Randolph_,
222.

[1178] Wilkinson to Jefferson, June 29, 1807, "Letters in Relation,"
MSS. Lib. Cong.

[1179] Jefferson to Congress, _Annals_, 10th Cong. 1st Sess. 9.

[1180] At this time Jefferson wrote curious letters, apparently to
explain, by inference, to his friends in France his want of energy in
the Chesapeake affair and the vigor he displayed in the prosecution of
Burr. "Burr's conspiracy has been one of the most flagitious of which
history will ever furnish an example.... Yet altho' there is not a man
in the U S who is not satisfied of the depth of his guilt, such are the
jealous provisions of our laws in favor of the accused, ... that I
question if he can be convicted." (Jefferson to Du Pont de Nemours, July
14, 1807, _Works_: Ford, X, 461; also see same to Lafayette, same date,
_ib._ 463.) It will be observed that in these letters Jefferson condemns
the laxity of American laws instead of blaming Marshall.

[1181] _Burr Trials_, I, 357-59.

[1182] Irving to Miss Fairlie, July 7, 1807, Irving, I, 153. "The only
reason given for immuring him in this abode of thieves, cut-throats, and
incendiaries," says Irving, "was that it would save the United States a
couple of hundred dollars (the charge of guarding him at his lodgings),
and it would insure the security of his person."

[1183] "Burr lives in great style, and sees much company within his
gratings, where it is as difficult to get an audience as if he really
were an Emperor." (_Blennerhassett Papers_: Safford, 324.) At first,
however, his treatment was very severe. (See Irving to Miss Fairlie,
July 7, 1807, Irving, I, 153.)

[1184] Burr to his daughter, July 3, 1807, Davis, II, 409.

[1185] Burr to his daughter, July 6, 1807, Davis, II, 410.

[1186] Same to same, July 24, 1807, _ib._ 410.

[1187] At a Fourth of July celebration in Cecil County, Maryland, toasts
were proposed wishing for the grand jury "a crown of immortal glory" for
"their zeal and patriotism in the cause of liberty"; hoping that Martin
would receive "an honorable coat of tar, and a plumage of feathers" as a
reward for "his exertions to preserve the Catiline of America"; and
praying that Burr's treachery to his country might "exalt him to the
scaffold, and hemp be his escort to the republic of dust and ashes."
(Parton: _Burr_, 478.)

[1188] See vol. IV, chap. I, of this work. Also _supra_, chap. III.

[1189] Marshall to the Associate Justices of the Supreme Court, June 29,
1807, as quoted by Horace Gray, Associate Justice of the Supreme Court,
in Dillon, I, 72.

[1190] Parton: _Burr_, 483.

[1191] _Burr Trials_, I, 369-70.

[1192] _Ib._ 370-85.

[1193] _Ib._ 385-414.

[1194] _Burr Trials_, I, 414-20.

[1195] Hay to Jefferson, Aug. 11, 1807, Jefferson MSS. Lib. Cong.

[1196] _Burr Trials_, I, 433-51.

[1197] Hay had announced that Eaton's testimony would be to the same
effect as his deposition.

[1198] _Burr Trials_, I, 452-69.

[1199] _Burr Trials_, I, 469-72.

[1200] _Blennerhassett Papers_: Safford, 343.

[1201] It was this farrago, published in every newspaper, that had
influenced the country only less than Jefferson's Special Message to
Congress.

[1202] Commodore Decatur's testimony was almost identical with that of
Truxtun. More convincing still, General Adair, writing before the trial
began, told substantially the same story. (Adair's statement, March,
1807, as quoted in Parton: _Burr_, footnote to 493.)

[1203] For the full Morgan testimony, see _Burr Trials_, I, 497-506.

[1204] _Burr Trials_, I, 514-18.

[1205] _Ib._ 518-26.

[1206] _Burr Trials_, I, 527-28.

[1207] Belknap was undoubtedly one of those whom Poole saw cross the
stream. Woodbridge and Dana were the others.

[1208] _Burr Trials_, I, 529.

[1209] These young men were thinking of joining the expedition.

[1210] The physician who accompanied the party.

[1211] _Burr Trials_, I, 528-29.

[1212] _Ib._ 529.

[1213] _Burr Trials_, I, 533-34.

[1214] _Ib._ 555-56.

[1215] _Burr Trials_, I, 557.

[1216] _Ib._ II, 3-12.

[1217] _Ib._ 25.

[1218] _Ib._ 26-27.

[1219] _Blennerhassett Papers_: Safford, 354-55.

[1220] Alston's description in _ib._ 360.

[1221] _Burr Trials_, II, 42.

[1222] _Blennerhassett Papers_: Safford, 360.

[1223] The temperature was very high throughout the trial. One night
Blennerhassett was overcome by it. (_Ib._ 319.)

[1224] _Burr Trials_, II, 57.

[1225] _Ib._ 57-59.

[1226] _Burr Trials_, II, 61-65.

[1227] _Ib._ 92.

[1228] See _Burr Trials_, II, 96-98.

For this famous passage of Wirt's speech, see Appendix E.

Burr was vastly amused by it and it became "a standing joke with him for
the rest of his life." (See Parton: _Burr_, 506.) But it was no
"joke"--standing or otherwise--to the people. They believed Wirt's
imagery to be a statement of the facts.

[1229] "Wirt raised his reputation yesterday, as high as MacRae sunk his
the day before." (_Blennerhassett Papers_: Safford, 366.)

[1230] _Burr Trials_, II, 123-24.

[1231] See Hay's complaint that Botts talked so fast that he could not
make notes on his points. (_Ib._ 194.)

[1232] _Burr Trials_, II, 128-35.

[1233] _Ib._ 168. Another story "propagated through the crowd" was that
Burr had, by his "emissaries," attempted to poison with laudanum one of
the Government's witnesses--this although the particular witness had
been brought to Richmond to testify only that Wilkinson was not in the
pay of Spain. (_Blennerhassett Papers_: Safford, 367.)

[1234] _Burr Trials_, II, 164-73.

[1235] Botts here refers to the public outcry against Jefferson, while
Governor during the Revolution, that nearly resulted in his impeachment.
(See vol. I, 143-44, of this work.)

[1236] _Burr Trials_, II, 135-92.

[1237] _Ib._ 224.

[1238] _Ib._ 192-236.

[1239] _Ib._ 193-94.

[1240] _Ib._ 200-19, 235.

[1241] See vol. II, 201, 428, of this work.

[1242] _Burr Trials_, II, 237-80.

[1243] Blennerhassett, in his diary, makes frequent mention of Martin's
drinking: "Martin was both yesterday and to-day more in his cups than
usual, and though he spared neither his prudence nor his feelings, he
was happy in all his hits." (_Blennerhassett Papers_: Safford, 438.)

"I ... recommended our brandy ... placing a pint tumbler before him. No
ceremonies retarded the libation." (_Ib._ 377.)

"Luther Martin has just made his final immersion into the daily bath of
his faculties." (_Ib._ 463.)

[1244] _Burr Trials_, II, 260.

[1245] _Burr Trials_, II, 262.

[1246] _Ib._ 275-79; see also 339-42, 344-48.

[1247] _Burr Trials_, II, 334.

[1248] _Ib._ 377.

[1249] One of those who told Martin this was Marshall himself. See
_supra_, 401.

[1250] _Burr Trials_, II, 377-78.

[1251] Randolph made another speech, but it was of no moment.

[1252] See _supra_, footnote to 499.

[1253] _Blennerhassett Papers_: Safford, 367.

[1254] _Burr Trials_, II, 401; also in 4 Cranch, 470.

[1255] 25th, of Edward III.

[1256] _Burr Trials_, II, 402-03; 4 Cranch, 470.

[1257] _Burr Trials_, II, 403; 4 Cranch, 471.

[1258] _Burr Trials_, II, 404-05; 4 Cranch, 472.

[1259] The doctrine that accessories are as guilty as principals.

[1260] _Burr Trials_, II, 406-08; 4 Cranch, 476. This reference is to
Jefferson's explanation of Marshall's opinion in Bollmann and Swartwout,
which Giles and other Republican leaders were proclaiming throughout
Virginia. It had been adopted by the grand jury; and it was this
construction of Marshall's language under which they returned the bills
of indictment for treason. Had the grand jury understood the law to be
as Marshall was now expounding it, Burr would not have been indicted for
treason.

[1261] _Burr Trials_, II, 409; 4 Cranch, 476.

[1262] _Burr Trials_, II, 409-13; 4 Cranch, 477-80.

[1263] _Burr Trials_, II, 415; 4 Cranch, 481.

[1264] _Burr Trials_, II, 415-23; 4 Cranch, 482-88.

[1265] _Burr Trials_, II, 425; 4 Cranch, 490.

[1266] This part of Marshall's opinion (_Burr Trials_, II, 425-34; 4
Cranch, 490-504) is reproduced in full in Appendix F.

[1267] _Burr Trials_, II, 426; 4 Cranch, 492.

[1268] _Burr Trials_, II, 429; 4 Cranch, 494.

[1269] _Burr Trials_, II, 430; 4 Cranch, 495.

[1270] _Burr Trials_, II, 436; 4 Cranch, 500.

[1271] _Burr Trials_, II, 436-37; 4 Cranch, 500. These paragraphs
furnish a perfect example of Marshall's method of statement and
logic--the exact antithesis plainly put, the repetition of precise words
with only the resistless monosyllables, "if" and "then," between them.

[1272] _Burr Trials_, II, 437; 4 Cranch, 501.

[1273] _Burr Trials_, II, 443; 4 Cranch, 506.

[1274] _Burr Trials_, II, 444-45; 4 Cranch, 507.

[1275] _Burr Trials_, II, 446.

[1276] _Burr Trials_, II, 446-47. Martin was right; the verdict should
have been either "guilty" or "not guilty."

[1277] _Blennerhassett Papers_: Safford, 339.

[1278] _Burr Trials_, II, 447.

[1279] _Blennerhassett Papers_: Safford, 356-58; and see Adams: _U.S._
III, 448, 464-65. Duane was known to have unbounded influence with
Jefferson, who ascribed his election to the powerful support given him
by the _Aurora_.

Government agents also tried to seduce Colonel de Pestre, another of
Burr's friends, by insinuating "how handsomely the Col. might be
provided for in the army, if his principles ... were not adverse to the
administration." De Pestre's brother-in-law "had been turned out of his
place as Clerk in the War Office, because he could not accuse the Col.
of Burr-ism." (_Blennerhassett Papers_: Safford, 328-29.)

[1280] _Burr Trials_, II, 448-49.

[1281] _Ib._ 455.

[1282] Jefferson to Hay, Sept. 4, 1807, as quoted in Adams, _U.S._ III,
470; and see _Jefferson_: Randolph, IV, 102.

[1283] Adams: _U.S._ III, 470.

[1284] See _infra_, 524.

[1285] _Burr Trials_, II, 473-80.

[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
repetition 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] _Blennerhassett 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] _Blennerhassett 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." (_Blennerhassett 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.)
Blennerhassett, 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." (_Blennerhassett Papers_: Safford, 422.)

[1305] _Ib._ 418.

[1306] Record, MSS. Archives U.S. Circuit Court, Richmond, Va.

[1307] _Blennerhassett 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] _Blennerhassett 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] _Blennerhassett Papers_: Safford, 301. If this were only the
personal opinion of Burr's gifted but untrustworthy associate, it would
not be weighty. But Blennerhassett'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. Blennerhassett, 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." (_Blennerhassett 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.

[1334] _Enquirer_, Nov. 24, 1807.

[1335] Marshall's _Life of Washington_.

[1336] See vol. II, 395-96, of this work.

[1337] "Letters to John Marshall, Chief Justice of the United States,"
in the _Aurora_, reprinted in the _Enquirer_, Dec. 1, 1807.

[1338] _Enquirer_, Dec. 4, 1807.

[1339] _Ib._ Dec. 8, 1807.

[1340] See _supra_, 525-26.

[1341] _Enquirer_, Dec. 12, 1807.

[1342] _Blennerhassett Papers_: Safford, 475.

[1343] _Blennerhassett Papers_: Safford, 477.

[1344] Gathering a few dollars from personal friends, Burr sailed for
England, hoping to get from the British Government support for his plans
to revolutionize Mexico. At first all went well. Men like Jeremy Bentham
and Sir Walter Scott became his friends and admirers. But the hand of
Jefferson followed him; and on representations of the American Minister,
the British Government ordered him to leave the United Kingdom
immediately.

Next he sought the ear of Napoleon; but again he was flouted and
insulted by the American diplomatic and consular representatives--he
was, they said, "a fugitive from justice." His last sou gone, ragged and
often hungry, he managed at last, by the aid of one John Reeves, to
secure passage for Boston, where he landed May 4, 1812. Then he
journeyed to New York, where he arrived June 30 in abject poverty and
utterly ruined. But still his spirit did not give way.

Soon, however, fate struck him the only blow that, until now, ever had
brought this iron man to his knees. His passionately beloved little
grandson, Aaron Burr Alston, died in June. In December, another and
heavier stroke fell. His daughter sailed from Charleston, South
Carolina, to join and comfort her father and be comforted by him. Her
ship was lost in a storm, and Theodosia the beautiful, the accomplished,
the adored, was drowned. Then, at last, the heart of Aaron Burr was
broken.

Of the many ridiculous stories told of Burr and his daughter, one was
that her ship was captured by pirates and she, ordered to walk the
plank, did so with her child in her arms "without hesitation or visible
tremor." This absurdity was given credit and currency by Harriet
Martineau. (See Martineau: _Western Travels_, II, 291-92.) Theodosia's
child had died six months before she sailed from Charleston to go to her
father, and she embarked in a pilot boat, about which no pirate would
have troubled himself.

The remainder of Burr's long life was given to the practice of his
profession. His industry, legal learning, and ability, once more secured
for him a good business. In 1824, Marshall ruled on an application to
restore an attorney named Burr to the bar of the Circuit Court of the
District of Columbia from which he had been suspended for unprofessional
conduct. (_Ex parte_ Burr, 9 Wheaton, 529-31.) It has often been
erroneously supposed that this applicant was Aaron Burr: he was,
however, one Levi Burr, a local practitioner, and not related to Aaron
Burr.

It is characteristic of Burr that he remembered the great lawyer who
voluntarily had hastened to defend him at Richmond, and Luther
Martin--aged, infirm, and almost deranged--was taken to the home of
Aaron Burr and tenderly cared for until he died. Burr's marriage, at the
age of seventy-eight, to Madame Jumel was, on his part, inexplicable; it
was the only regrettable but not unworthy incident of the latter years
of his life. (See Shelton: _Jumel Mansion_, 170-74.)

Burr's New York friends were loyal to him to his very last day. His
political genius never grew dim. He early suggested and helped to bring
about the nomination of Andrew Jackson for the Presidency. Thus did he
pay the debt of gratitude for the loyalty with which the rugged
Tennesseean had championed his cause against public opinion and
Administration alike.

During the summer of 1836 his last illness came upon him. When his
physician said that he could live but a few hours longer, a friend at
his bedside asked the supposedly expiring man "whether in the expedition
to the Southwest he had designed a separation of the Union." Believing
himself to be dying, Burr replied: "No! I would as soon have thought of
taking possession of the moon and informing my friends that I intended
to divide it among them." To a man, his most intimate friends believed
this statement to be true.

Finally, on September 14, 1836, Aaron Burr died and was buried near his
father at Princeton, New Jersey, where the parent had presided over, and
the son had attended, that Alma Mater of so many patriots, soldiers, and
statesmen.

For two years his burial place was unmarked. Then, at night-time,
unknown friends erected over his grave a plain marble shaft, bearing
this inscription:

  AARON BURR

  Born Feb. 6, 1756
  Died Sept. 14, 1836
  Colonel in the Army of the Revolution
  Vice-President of the United States from 1801 to 1805

                   (_Gulf States Historical Magazine_, II, 379.)

Parton's _Life of Burr_ is still the best story of this strange life.
But Parton must be read with great care, for he sometimes makes
statements which are difficult of verification.

A brief, engaging, and trustworthy account of the Burr episode is _Aaron
Burr_, by Isaac Jenkinson. Until the appearance of Professor McCaleb's
book, _The Aaron Burr Conspiracy_, Mr. Jenkinson's little volume was the
best on that subject. Professor McCaleb's thorough and scholarly study
is, however, the only exhaustive and reliable narrative of that
ambitious plan and the disastrous outcome of the attempted execution of
it.

[1345] _Blennerhassett Papers_: Safford, 480-82; also see _Baltimore
American_, Nov. 4, 5, 6, 1807.

[1346] _Annals_, 10th Cong. 1st Sess. 108-27.

[1347] The bill passed the Senate, but foreign affairs, and exciting
legislation resulting from these, forced it from the mind of the House.
(See vol. IV, chap. I, of this work.)

[1348] John Quincy Adams of Massachusetts, Samuel Maclay of
Pennsylvania, Jesse Franklin of North Carolina, Samuel Smith of
Maryland, John Pope of Kentucky, Buckner Thruston of Kentucky, and
Joseph Anderson of Tennessee. (_Annals_, 10th Cong. 1st Sess. 42.)

[1349] Smith had been indicted for treason and misdemeanor, but Hay had
entered a _nolle prosequi_ on the bills of indictment after the failure
of the Burr prosecution. (_Memoirs, J. Q. A._: Adams, I, 481.)

[1350] Adams had been indulging in political maneuvers that indicated a
courtship of the Administration and a purpose to join the Republican
Party. His course had angered and disgusted most of his former
Federalist friends and supporters, who felt that he had deserted his
declining party in order to advance his political fortunes. If this were
true, his performance in writing the Committee report on the resolution
to expel Smith was well calculated to endear him to Jefferson. Adams
expressed his own views thus: "On most of the great national questions
now under discussion, my sense of duty leads me to support the
administration, and I find myself of course in opposition to the
federalists in general.... My political prospects are declining."
(_Memoirs, J. Q. A._: Adams, I, 497-98.)

The Federalist Legislature of Massachusetts grossly insulted Adams by
electing his successor before Adams's term in the Senate had expired.
Adams resigned, and in March, 1809, President Madison appointed him
Minister to Russia, and later Minister to Great Britain. President
Monroe made the former Federalist his Secretary of State. No Republican
was more highly honored by these two Republican Presidents than was John
Quincy Adams.

[1351] Adams did not, of course, mention Marshall by name. His
castigation of the Chief Justice, however, was the more severe because
of the unmistakable designation of him. (See _Writings, J. Q. A._: Ford,
III, 173-84; also _Annals_, 10th Cong. 1st Sess. 56-63.)

It must be remembered, too, that this attack upon Marshall comes from
the son of the man who, on January 20, 1801, appointed Marshall Chief
Justice. (See vol. II, 552-53, of this work.) But John Quincy Adams soon
came to be one of the stanchest supporters and most ardent admirers that
Marshall ever had. It was peculiarly characteristic of Marshall that he
did not resent the attack of Adams and, for the only time in his
judicial career, actually interested himself in politics in behalf of
Adams. (See vol. IV, chap. IX, of this work.)

[1352] Adams's colleague Senator Pickering was, of course, disgusted
(see his letter to King, Jan. 2, 1808, King, V, 44), and in a pamphlet
entitled "A Review of the Correspondence Between the Hon. John Adams and
the late William Cunningham, Esq." which he published in 1824, Pickering
wrote that the resolution "outraged ... every distinguished lawyer in
America" (see p. 41 of pamphlet). King thought Adams "indiscreet" (see
his letter to Pickering, Jan. 7, 1808, King, V, 50). Plumer declared
that the report "had given mortal offence" in New Hampshire (see _Mass.
Historical Society Proceedings_, XLV, 357). John Lowell asserted that
"justice ... was to be dragged from her seat ... and the eager minister
of presidential vengeance seemed to sigh after the mild mercies of the
star chamber, and the rapid movements of the revolutionary tribunal"
(see his "Remarks" as quoted in _Writings, J. Q. A._: Ford, III,
footnote to 184).

[1353] Jan. 28, 1808, _Memoirs, J. Q. A._: Adams, I, 508; see also
_Writings, J. Q. A._: Ford, III, footnote to 184.

[1354] "He poured himself forth in his two speeches to-day.... It was
all a phillipic upon me." (Jan. 7, 1808, _Memoirs, J. Q. A._: Adams, I,
501.)

[1355] _Ib._

[1356] _Annals_, 10th Cong. 1st Sess. 324.

[1357] "Mr. Giles, in one of the most animated and eloquent speeches I
ever heard him make, declared himself ... against the resolution for
expulsion. He argued the case of Mr. Smith with all his eloquence, and
returned to the charge with increasing warmth until the last moment."
(April 9, 1808, _Memoirs, J. Q. A._: Adams, I, 528.)

[1358] _Annals_, 10th Cong. 1st Sess. 321-24.




CHAPTER X

FRAUD AND CONTRACT

    If I were to characterize the United States, it should be by the
    appellation of the land of speculation. (William Priest.)

    By the God of Heaven, if we go on in this way, our nation will
    sink into disgrace and slavery. (John Tyler.)

    Millions of acres are easily digested by such stomachs. They buy
    and sell corruption in the gross. (John Randolph.)

    When a law is in its nature a contract, when absolute rights
    have vested under that contract, a repeal of the law cannot
    divest those rights. The people can act only by their agents
    and, within the powers conferred upon them, their acts must be
    considered as the acts of the people. (Marshall.)


The Honorable William Longstreet was an active and influential member of
the Georgia Legislature during the winter of 1794-95. He was also a
practical man. An important bill was then before that body, and Mr.
Longstreet employed effective methods to forward its passage. The
proposed legislation was to authorize the sale to four speculating land
companies[1359] of most of that territory which comprises the present
States of Alabama and Mississippi.

"Why are you not in favor of selling the western lands?" frequently
asked Representative Longstreet of his fellow member, Clem Lanier.
"Because I do not think it right to sell to companies of speculators,"
was the answer. "Better vote for the bill," observed his seat mate,
Representative Henry Gindrat, one day as they sat chatting before the
Speaker of the House took the chair. "It will be worth your while.
Senator Thomas Wylly says that he can have eight or ten likely negroes
for his part."

That afternoon Senator Wylly came to Lanier and began to talk of the
land bill. A Mr. Dennison sauntered up. Wylly left, and the newcomer
remarked that, of course, he advised no legislator how to vote, but he
could not help noticing that all who favored the sale of the lands "were
handsomely provided for." If Lanier should support the bill, he would be
taken care of like the rest. He was buying, Dennison said, from members
who wished to sell lands allotted to them for agreeing to support the
measure.

Once more came Longstreet, who "presented a certificate entitling the
bearer to two shares of twenty-five thousand acres each," as security
that Lanier would be rewarded if he voted for the sale bill. The
obdurate Representative, who wished to probe the depths of the plot,
objected, and Longstreet assured him that he would immediately procure
"another certificate ... for the same number of acres." But Lanier
finally declined the bribe of seventy-five thousand acres of land.[1360]

Representative Gindrat had offered to sell his shares for one thousand
dollars, the price generally given; but, securing "a better market,"
declined that sum.[1361] Representative Lachlan M'Intosh received six
shares in one of the land companies, which he sold at a premium of two
hundred and fifty dollars each.[1362]

After the bill had passed, Senator Robert Thomas, who had no means of
acquiring ready cash,[1363] brought two thousand dollars to the house
where he boarded and asked Philip Clayton, the owner, to keep it for
him. Clayton was curious--did Senator Thomas get the money for his share
of the lands? he inquired. "It is nothing to you; take care of it,"
answered the suddenly affluent legislator, smiling.[1364]

Representative Longstreet offered Representative John Shepperd one
hundred thousand acres, but Shepperd was not interested; then Philip
Clayton, the tavern-keeper, offered him seventy pounds to go home for
the session.[1365]

A saturnalia of corruption was in progress in the little village of
Augusta, where the Legislature of Georgia was in session.[1366] The
leading men of that and neighboring States were on the ground urging the
enactment of the law in which all were interested. Wade Hampton of South
Carolina was on hand. State and National judges were present. James
Wilson of Pennsylvania, Associate Justice of the Supreme Court of the
United States, was there with twenty-five thousand dollars in bank
bills.[1367]

William Smith, Judge of the Superior Court of Georgia, added his
influence, receiving for his services as lobbyist thirteen thousand
dollars. Nathaniel Pendleton, Judge of the United States Court for that
district, urged the legislation and signed and issued the certificates
for shares that were given to the members for their votes.[1368]
Directing all was General James Gunn, United States Senator from
Georgia: his first term in the National Senate about to expire, he was
now reëlected by this very Legislature.[1369]

A majority of Georgia's lawmaking body thus became financially
interested in the project, and the bill passed both houses. But Governor
George Mathews vetoed the measure, because he thought the time not
propitious for selling the lands, the price too low, the reservations
for Georgians too small, and the principle of monopoly wrong.[1370]
Another bill was prepared to meet some of the Governor's objections.
This was introduced as a supplement to a law just enacted to pay the
State troops.[1371] Again every possible influence was brought upon the
Legislature to pass this bill with utmost dispatch.[1372] Some members,
who would not support it, were induced to leave the tiny Georgia
Capital; others, who were recalcitrant, were browbeaten and bullied.

Senator Gunn, the field marshal of this legislative campaign, strode
about the village arrayed in broadcloth, top boots, and beaver hat,
commending those who favored the bill, abusing those who opposed it. In
his hand he carried a loaded whip, and with this the burly Senator
actually menaced members who objected to the scheme.[1373] In a little
more than one week the bill was rushed through both houses. This time it
received the reluctant approval of the Governor, and on January 7, 1795,
became a law.

In such fashion was enacted the legislation which disposed of more than
thirty-five million acres of fertile, well-watered, heavily wooded land
at less than one and one half cents an acre.[1374] The purchasers were
four companies known as The Georgia Company, The Georgia Mississippi
Company, The Tennessee Company, and The Upper Mississippi Company. The
total purchase price was five hundred thousand dollars in specie or
approved currency, one fifth to be deposited with the State Treasurer
before the passage of the act, and the remainder to be paid on or
before November 1, 1795. The Governor was directed to execute a deed in
fee-simple to the men composing each company as tenants in common; and
the deferred payments were secured by mortgages to the Governor, to be
immediately foreclosed upon default of payment, and the one fifth
already deposited to be forfeited to the State.

Two million acres were reserved for exclusive entry by citizens of
Georgia, and the land companies were bound to form settlements within
five years after the Indian titles had been extinguished. The lands were
declared free of taxation until they should be so occupied that the
settlers were represented in the Legislature.[1375] Governor Mathews
executed deeds in compliance with the law, and, the entire amount of the
purchase money having been paid into the State Treasury before November
1, the mortgages were canceled and the transaction was closed in
accordance with the provisions of the statute. So far as that
legislation and the steps taken in pursuance of it could bring about
such a result, the legal title to practically all of the domain
stretching from the present western boundary of Georgia to the
Mississippi River, and from the narrow strip of Spanish territory on the
Gulf to the Tennessee line, was transferred to the men composing these
four land companies. The greatest real estate deal in history was thus
consummated.

But even while this bill was before the Legislature, popular opposition
to it began. A young man of twenty-three was then teaching in a little
school-house at Augusta, but he was destined to become United States
Senator, Minister to France, Secretary of the Treasury, and candidate
for President. Enraged at what he believed the despoiling of the people
by a band of robbers using robbers' methods, young William H. Crawford
hurried to his home in Columbia County, got up a petition to the
Governor to reject the bill again, and hurried to the Capital where he
presented it to the Chief Executive of the State.[1376] But Governor
Mathews, against whom no man, then or thereafter, charged corrupt
motives, persisted in signing the measure.

And it must be said that the bill was not without merit. Georgia was but
thinly populated, not more than fifty thousand human beings inhabiting
its immense extent of savanna and forest. Most of these people were very
poor[1377] and unable to pay any public charges whatever. The State
Treasury was empty; the State troops, who had been employed in the
endless Indian troubles, were unpaid and clamoring for the money long
due them; the State currency had so depreciated that it was almost
without value. No commonwealth in the Union was in worse financial
case.[1378]

Moreover, the titles of the Indians, who occupied the country and who
were its real owners, had not been extinguished. Under the Constitution,
the National Government alone could deal with the tribes, and it had
long been urging Georgia to cede her claims to the United States, as
Virginia and Connecticut had done. Indeed, the State had once offered to
make this cession, but on such terms that Congress had refused to accept
it. The purchasers now took whatever title Georgia had, subject to these
burdens, the State to be saved from all annoyance on account of them.

The tribes were powerful and brave, and they had been prompt and bold in
the defense of their lands. The Creeks alone could put nearly six
thousand fighting men in the field, and the Choctaws had more than four
thousand trained warriors.[1379] The feeble and impoverished State had
never been able to subdue them, or to enforce in the slightest degree
the recognition of the State's title to the country they inhabited.
Georgia's right to their lands "depended on her power to dispossess the
Indians; but however good the title might be, the State would have been
fortunate to make it a free gift to any authority strong enough to deal
with the Creeks and Cherokees alone."[1380]

The sale of the territory was not a new or novel project. Six years
earlier the State had disposed of twenty-five million five hundred
thousand acres of the same territory to four land companies on much
poorer terms.[1381] Jefferson, then Secretary of State, rendered a
careful opinion on the right of Georgia to make the grant.[1382] These
purchasers had tendered payment in South Carolina and Continental scrip
that was practically worthless; the Treasurer of Georgia had properly
refused to accept it; and there ended the transaction as far as the
State was concerned. A suit was later brought against Georgia by the
grantees[1383] to compel the performance of the contract; but the
Eleventh Amendment of the Constitution thwarted that legal plan. So
these speculators dropped the matter until the sale just described was
made to the new companies six years later.

The most active promoters of the first purchasing companies, in 1789,
were mere adventurers, although at first Patrick Henry and other men of
honor and repute were interested in the speculation. Henry, however,
soon withdrew.[1384] The consummation of their deal with Georgia
required the payment of sound money and _bona-fide_ settlement by actual
tillers of the soil. Also, the adventurers got into trouble with the
Indians, became gravely involved in Spanish intrigue, and collided with
the National Government;[1385] so the enterprise lost, for a time, all
attractiveness for these speculators.

The new land companies, on the other hand, were for the most part
composed of men of excellent reputations.[1386] At the head of the
largest, The Georgia Company, were United States Senator James Gunn and
United States Attorney for the District of Georgia, Mathew McAlister;
associated with them, in addition to Judges Stith and Pendleton, and
Justice Wilson, were Robert Goodloe Harper, Representative in Congress
from Maryland, Robert Morris, the financier of the Revolution, and
others of substance and position.[1387] Also, as has been stated, they
paid for their lands in the money called for by the act--the best money
then circulating in America. The first sales of Indian lands to which
Georgia claimed title were known as the "Yazoo" speculation, and this
designation stuck to the second transaction.

In the six years that had intervened between the sales to the
irresponsible land-jobbers of 1789 and the solvent investors of 1795, an
event of world importance had occurred which doubled and trebled the
value of all cotton-bearing soil. Eli Whitney, a Connecticut
school-teacher twenty-seven years of age, had gone to Georgia in 1792 to
act as a private tutor. Finding the position taken, he studied law while
the guest of the widow of General Nathanael Greene. This discerning
woman, perceiving that the young man was gifted with inventive genius,
set him to work on a device for separating cotton from the seed. The
machine was built, and worked perfectly. The news of it traveled with
astonishing rapidity throughout Georgia and the South. The model was
stolen; and so simple was the construction of it that everywhere in
cotton-growing lands it was freely reproduced by planters great and
small. The vast sweep of territory stretching from Georgia to the Father
of Waters, the best cotton land in the world, thus rose in value as if
the wand of a financial deity had been waved over it. Settlers poured
into Georgia by the thousand, and Indian atrocities were now as little
feared as Indian rights were respected.[1388]

The purchase of the unoccupied Georgia lands by the _bona-fide_, if
piratical, land companies of 1795 became, therefore, an adventure far
more valuable in possibilities for the investors, and incomparably more
attractive in the probability of political advantage to those who
resisted it, than the innocuous and unopposed sale to the Yazoo
swindlers of six years previous.

So it fell out that the mechanical genius of Eli Whitney, in 1793,
called into action, exactly eighteen years afterward, the judicial
genius of John Marshall. His opinion in Fletcher _vs._ Peck was one of
the first steps toward the settling of the law of public contract in the
riotous young Republic--one of the earliest and strongest judicial
assertions of the supremacy of Nationalism over Localism. And never more
than at that particular time did an established rule on these vital
subjects so need to be announced by the highest judicial authority.

Since before the Revolution, all men had fixed their eyes, hopes, and
purposes upon land. Not the humble and needy only, but the high-placed
and opulent, had looked to the soil--the one as their chief source of
livelihood, and the other as a means of profitable speculation. Indeed,
dealing in land was the most notable economic fact in the early years of
the American Nation. "Were I to characterize the _United States_,"
chronicles one of the most acute British travelers and observers
of the time, "it should be by the appellation of the _land of
speculation_."[1389]

From the Nation's beginning, the States had lax notions as to the
sacredness of public contracts, and often violated the obligations of
them.[1390] Private agreements stood on a somewhat firmer basis, but
even these were looked upon with none too ardent favor. The most
familiar forms of contract-breaking were the making legal tender of
depreciated paper, and the substitution of property for money; but other
devices were also resorted to. So it was that the provision, "no state
shall pass any law impairing the obligation of contracts," was placed in
the Constitution.[1391] The effect of this on the public mind, as
reported by conservatives like Marshall, is stated in the _Commercial
Gazette_ of Boston, January 28, 1799: "State laws protected debtors"
when they "were citizens ... [and] the creditors foreigners. The federal
constitution, prohibiting the states to clear off debts _without
payment_, by exacting _justice_, seemed ... to establish _oppression_."
The debtors, therefore, "pronounced ... the _equal_ reign of law and
debt-compelling justice, the beginning of an insidious attack on liberty
and the erection of aristocracy."

The "contract clause" of the Constitution was now to be formally
challenged by a "sovereign" State for the first time since the
establishment of the National Government. Georgia was to assert her
"sovereignty" by the repudiation of her laws and the denial of
contractual rights acquired under them. And this she was to do with
every apparent consideration of morality and public justice to support
her.

The tidings of the corruption attending the second "Yazoo" sale were
carried over the State on the wings of fury. A transaction which six
years before had met with general acquiescence,[1392] now received
deep-throated execration. The methods by which the sale was pushed
through the Legislature maddened the people, and their wrath was
increased by the knowledge that the invention of the Connecticut
schoolmaster had tremendously enhanced the value of every acre of
cotton-bearing soil.

Men who lived near Augusta assembled and marched on the Capital
determined to lynch their legislative betrayers. Only the pleadings of
members who had voted against the bill saved the lives of their guilty
associates.[1393] Meetings were held in every hamlet. Shaggy
backwoodsmen met in "old-field" log schoolhouses and denounced "the
steal." The burning in effigy of Senator Gunn became a favorite
manifestation of popular wrath. The public indignation was strengthened
by the exercise of it. Those responsible for the enactment of the law
found it perilous to be seen in any crowd. One member left the State.
Another escaped hanging only by precipitate flight.[1394] Scores of
resolutions were passed by town, rural, and backwoods assemblages
demanding that the fraudulent statute be rescinded. Petitions,
circulated from the "mansion" of the wealthy planter to the squalid
cabin of the poorest white man, were signed by high and low alike. The
grand juries of every county in Georgia, except two, formally presented
as a grievance the passage of the land sale act of 1795.

Among other things, the land sale act required the Senators and
Representatives of Georgia in Congress to urge the National Government
to speed the making of a treaty with the Indian tribes extinguishing
their title to the lands which the State had sold. Upon receiving a copy
of the nefarious law, Senator James Jackson of Georgia laid it before
the Senate, together with a resolution declaring that that body would
"advise and consent" to the President's concluding any arrangement that
would divest the Indians of their claims.[1395]

But although he had full knowledge of the methods by which the act was
passed, the records do not show that Jackson then gave the slightest
expression to that indignation which he so soon thereafter poured forth.
Nor is there any evidence that he said a word on the subject when, on
March 2, 1795, Georgia's title again came before the Senate.[1396] Some
time afterward, however, Senator Jackson hurried home and put himself at
the head of the popular movement against the "Yazoo Frauds." In every
corner of the State, from seaport to remotest settlement, his fiery
eloquence roused the animosity of the people to still greater frenzy. In
two papers then published in Georgia, the _Savannah Gazette_ and the
_Augusta Chronicle_, the Senator, under the _nom de guerre_ of
"Sicillius," published a series of articles attacking with savage
violence the sale law and all connected with the enactment of it.[1397]

It came out that every member of the Legislature who had voted for the
measure, except one,[1398] had shares of stock in the purchasing
companies.[1399] Stories of the extent of the territory thus bartered
away kept pace with tales of the venality by which the fraud was
effected. Bad as the plain facts were, they became simply monstrous when
magnified by the imagination of the public.

Nearly every man elected[1400] to the new Legislature was pledged to
vote for the undoing of the fraud in any manner that might seem the most
effective. Senator Jackson had resigned from the National Senate in
order to become a member of the Georgia House of Representatives; and to
this office he was overwhelmingly elected. When the Legislature
convened in the winter of 1795-96, it forthwith went about the task of
destroying the corrupt work of its predecessor. Jackson was the
undisputed leader;[1401] his associates passed, almost unanimously, and
Governor Irwin promptly approved, the measure which Jackson wrote.[1402]
Thus was produced that enactment by a "sovereign" State, the validity of
which John Marshall was solemnly to deny from the Supreme Bench of the
Nation.

Jackson's bill was a sprightly and engaging document. The preamble was
nearly three times as long as the act itself, and abounded in
interminable sentences. It denounced the land sale act as a violation of
both State and National Constitutions, as the creation of a monopoly, as
the dismemberment of Georgia, as the betrayal of the rights of man. In
this fashion the "whereases" ran on for some thousands of words. On
second thought the Legislature concluded that the law was worse than
unconstitutional--it was, the "whereases" declared, a "usurped act."
That part of the preamble dealing with the mingled questions of fraud
and State sovereignty deserves quotation in full:

"And Whereas," ran this exposition of Constitutional law and of the
nature of contracts, "divested of all fundamental and constitutional
authority which the said usurped act might be declared by its advocates,
and those who claim under it, to be founded on, fraud has been practised
to obtain it and the grants under it; and it is a fundamental principle,
both of law and equity, that there cannot be a wrong without a remedy,
and the State and the citizens thereof have suffered a most grievous
injury in the barter of their rights by the said usurped act and grants,
and there is no court existing, if the dignity of the State would permit
her entering one, for the trial of fraud and collusion of individuals,
or to contest her sovereignty with them, whereby the remedy for so
notorious an injury could be obtained; and it can no where better lie
than with the representatives of the people chosen by them, after due
promulgation by the grand juries of most of the counties of the State,
of the means practised, and by the remonstrances of the people of the
convention, held on the 10th day of May, in the year 1795, setting forth
the atrocious peculation, corruption, and collusion, by which the
usurped act and grants were obtained."[1403]

At last the now highly enlightened Legislature enacted "that the said
usurped act ... be declared null and void," and that all claims directly
or indirectly arising therefrom be "annulled." The lands sold under the
Act of 1795 were pronounced to be "the sole property of the State,
subject only to the right of treaty of the United States, to enable the
State to purchase, under its pre-emption right, the Indian title to the
same."[1404]

Such was the law which John Marshall was to declare invalid in one of
the most far-reaching opinions ever delivered from the Supreme Bench.

The Legislature further enacted that the "usurped act" and all "records,
documents, and deeds" connected with the Yazoo fraud, "shall be expunged
from the face and indexes of the books of record of the State, and the
enrolled law or usurped act shall then be publicly burnt, in order that
no trace of so unconstitutional, vile, and fraudulent a transaction,
other than the infamy attached to it by this law, shall remain in the
public offices thereof." County officials were, under the severest of
penalties for disobedience, directed to "obliterate" all records of
deeds or other instruments connected with the anathematized grants, and
courts were forbidden to receive any evidence of title of any kind
whatever to lands from the grantees under the "usurped act."[1405]

The Governor was directed to issue warrants for repayment to those who,
in good faith, had deposited their purchase money, with this
reservation, however: "Provided the same shall be now therein."[1406]
After six months all moneys not applied for were to become the property
of Georgia. To prevent frauds upon individuals who might otherwise
purchase lands from the pirate companies, the Governor was directed to
promulgate this brief and simple act "throughout the United States."

A committee, appointed to devise a method for destroying the records,
immediately reported that this should be done by cutting out of the
books the leaves containing them. As to the enrolled bill containing
the "usurped act," an elaborate performance was directed to be held:
"A fire shall be made in front of the State House door, and a line
formed by the members of both branches around the same. The Secretary of
State[1407] ... shall then produce the enrolled bill and usurped act
from among the archives of the State and deliver the same to the
President of the Senate, who shall examine the same, and shall then
deliver the same to the Speaker of the House of Representatives for like
examination; and the Speaker shall then deliver them to the Clerk of the
House of Representatives, who shall read aloud the title to the same,
and shall then deliver them to Messenger of the House, who shall then
pronounce--'GOD SAVE THE STATE!! AND LONG PRESERVE HER RIGHTS!! AND MAY
EVERY ATTEMPT TO INJURE THEM PERISH AS THESE CORRUPT ACTS NOW
DO!!!!'"[1408]

Every detail of this play was carried out with all theatrical effect.
Indeed, so highly wrought were the imaginations of actors and onlookers
that, at the last moment, a final dash of color was added. Some one
gifted with dramatic genius suggested that the funeral pyre of such
unholy legislation should not be lighted by earthly hands, but by fire
from Heaven. A sun-glass was produced; Senator Jackson held it above
the fagots and the pile was kindled from "the burning rays of the
lidless eye of justice."[1409]

While the State was still in convulsions of anger, a talented young
Virginian of impressionable temperament went to Georgia upon a visit to
a college friend, Joseph Bryan, and was so profoundly moved by accounts
of the attempt to plunder the State, that a hatred of the corrupt plot
and of all connected with it became an obsession that lasted as long as
he lived.[1410] Thus was planted in the soul of John Randolph that
determination which later, when a member of Congress, caused him to
attack the Administration of Thomas Jefferson.[1411]

Swift as was the action of the people and legislature of Georgia in
attempting to recover the Yazoo lands, it was not so speedy as that of
the speculators in disposing of them to purchasers in other States. Most
of these investors bought in entire good faith and were "innocent
purchasers." Some, however, must have been thoroughly familiar with the
fraud.[1412] The most numerous sales were made in the Middle States and
in New England. The land companies issued a prospectus,[1413] setting
out their title, which appeared to be, and indeed really was, legally
perfect. Thousands of copies of this pamphlet were scattered among
provident and moneyed people. Agents of the companies truthfully
described the Yazoo country to be rich, the climate mild and healthful,
and the land certain of large and rapid rise in value.

Three of the companies[1414] opened an office in Boston, where the
spirit of speculation was rampant. Then ensued an epidemic of
investment. Throngs of purchasers gathered at the promoters' offices.
Each day prices rose and the excitement increased. Buying and selling of
land became the one absorbing business of those who had either money or
credit. Some of the most prominent and responsible men in New England
acquired large tracts.[1415] The companies received payment partly in
cash, but chiefly in notes which were speedily sold in the market for
commercial paper. Sales were made in other Northern cities, and many
foreigners became purchasers. The average price received was fourteen
cents an acre.[1416]

Some New Englanders were suspicious. "The Georgia land speculation calls
for vigor in Congress. Near fifty millions acres sold ... for a song,"
wrote Fisher Ames.[1417] But such cautious men as Ames were few in
number and most of them were silent. By the time reports reached Boston
that the Legislature of Georgia was about to repeal the act under which
the companies had bought the lands, numerous sales, great and small, had
been made. In that city alone more than two millions of dollars had been
invested, and this had been paid or pledged by "every class of men, even
watch-makers, hair-dressers, and mechanics." The Georgia Company
conveyed eleven million acres on the very day that the Legislature of
Georgia passed the bill declaring the "usurped act" to be null and void
and asserting the title of the whole territory still to be in the
State.[1418]

Three weeks later, the news of the enactment of the rescinding law was
published in the New England metropolis. Anger and apprehension seized
the investors. If this legislation were valid, all would lose heavily;
some would be financially ruined. So a large number of the purchasers
organized the New England Mississippi Company for the purpose of
defending their interests. A written opinion upon the validity of their
titles was procured from Alexander Hamilton, who was then practicing law
in New York and directing the Federalist Party throughout the Nation.
He was still regarded by most Federalists, and by nearly all moneyed
men, as the soundest lawyer, as well as the ablest statesman, in
America.

Hamilton's opinion was brief, simple, convincing, and ideally
constructed for perusal by investors. It stated the facts of the
enactment of the sale law, the fulfillment of the conditions of it by
the purchasers, and the passage of the rescinding act. Hamilton declared
this latter act to be invalid because it plainly violated the contract
clause of the Constitution. "Every grant ... whether [from] ... a state
or an individual, is virtually a contract." The rescinding act was
therefore null, and "the courts of the United States ... will be likely
to pronounce it so."[1419]

Soon after its passage, President Washington had received a copy of the
Georgia land sale act. He transmitted it to Congress with a short
Message,[1420] stating that the interests of the United States were
involved. His principal concern, however, and that of Congress also, was
about the Indians. It was feared that depredations by whites would cause
another outbreak of the natives. A resolution was adopted authorizing
the President to obtain from Georgia the cession of her "claim to the
whole or any part of the land within the ... Indian boundaries," and
recommending that he prevent the making of treaties by individuals or
States "for the extinguishment of the Indian title." But not a word was
said in Washington's Message, or in the debate in Congress, about the
invalidity of the Georgia sale law or the corrupt methods employed to
secure the enactment of it.[1421]

Two bills to protect the Indians failed of passage.[1422] Just before
adjournment the House adopted a Senate resolution which had been offered
by Senator Rufus King of New York, requesting that the Attorney-General
report to the Senate all data bearing on Georgia's title to the
territory sold to the land companies; but again the invalidity of the
sale law was not even suggested, and the corruption of the Georgia
Legislature was not so much as referred to.[1423]

A year later, Charles Lee, Washington's Attorney-General, transmitted to
Congress an exhaustive report containing all facts.[1424] This report
was referred to a special committee, headed by Senator Aaron Burr of New
York, who, on May 20, 1796, reported a resolution authorizing the
President to treat with Georgia for the cession of the territory.[1425]
Once more no attention was paid to the fraud in the sale act, or to the
rescinding act of the Georgia Legislature.

But when the public finally learned of the "Yazoo Fraud" and of the
repudiation by the Georgia Legislature of the corrupt law, the whole
country was deeply stirred. A war of pamphlets broke out and was waged
by both sides with vigor and ability. Abraham Bishop of New Haven,
Connecticut, wrote a comprehensive answer to the prospectus of the land
companies, and copies of this pamphlet, which appeared in four parts,
were widely circulated.[1426] Georgia had no fee in the lands, said
Bishop.[1427] Sales to "innocent purchasers" could not give them what
Georgia had no right to sell. Neither could such a device validate
fraud. Much litigation had already grown out of the swindle, and the
Georgia rescinding act had "brought ... matters to a crisis, and one
decision of the supreme court of the United States may probably
influence the decisions of lower courts."[1428] Bishop discussed
brilliantly, and at length, every possible question involved. The power
of the State to pass and repeal laws was "wholly uncontrolable,"[1429]
he asserted. The history of other dishonest and imprudent speculations
was examined--the South Sea Bubble, the Mississippi Bubble,[1430] and
the interposition of the legislative power of Great Britain in the one
case and of France in the other. Should like power be denied in America?
Georgia's rescinding act "nipt in the bud a number of aspiring
swindlers."[1431] Courts could not overthrow such legislation. The
"sacredness of contracts" was the favorite cloak of fraud. Bishop urged
buyers to resist the recovery of money pledged in their purchase notes
and, by so doing, to restore "millions of dollars ... to the channels of
industry."[1432]

Hard upon the publication of the first number of Bishop's pamphlet
followed one for the land companies and investors. This had been written
by Robert Goodloe Harper of Maryland a few months after Hamilton had
rendered his opinion that the Georgia grant was inviolable.[1433] It
was an able and learned performance. The title of Georgia to the lands
was carefully examined and held to be indefeasible. The sale of 1795 was
set forth and the fact disclosed that Georgia had appropriated one
hundred thousand dollars of the purchase money immediately upon the
receipt of it.[1434] It was pointed out that the rescinding act ignored
this fact.[1435]

Harper argued that only the courts could determine the validity and
meaning of a law, and that no Legislature could annul a grant made by a
previous one. To the Judiciary alone belonged that power.[1436] The sale
law was a contract, fully executed; one party to it could not break that
compact.[1437] If Georgia thought the sale act unconstitutional, she
should have brought suit in the United States Court to determine that
purely judicial question. The same was true as to the allegations of
fraud and corruption in the passage of the measure. If any power could
do so, the courts and they alone could decide the effect of fraud in
procuring the enactment of a law. But even the courts were barred from
investigating that question: if laws could be invalidated because of the
motives of members of lawmaking bodies, "what a door would be opened to
fraud and uncertainty of every kind!"[1438]

Finally, after a long altercation that lasted for nearly three years,
Congress enacted a law authorizing the appointment of commissioners to
settle the disputes between the National Government and Georgia, and
also to secure from that truculent sovereignty the cession to the Nation
of the lands claimed by the State.[1439] In the somewhat extended debate
over the bill but little was said about the invalidity of the Yazoo
sale, and the corruption of the Legislature that directed it to be made
was not mentioned.[1440]

Under this act of Congress, Georgia ceded her rights over the disputed
territory for one million, two hundred and fifty thousand dollars;
provided, however, that the Nation should extinguish the Indian titles,
settle British and Spanish claims, ultimately admit the vast domain as
a State of the Union, and reserve five million acres for the purpose of
quieting all other demands. A later law[1441] directed the National
commissioners, who had negotiated this arrangement with Georgia, to
investigate and report upon the claims of individuals and companies to
lands within the territory thus ceded to the United States.

At once the purchasers from the land companies, especially the New
England investors, besieged Congress to devote part of this five million
acres to the salvage of their imperiled money. The report of the
commissioners[1442] was wise, just, and statesmanlike. It was laid
before the House on February 16, 1803. Although the titles of the
claimants could "not be supported," still, because most of the titles
had been acquired in good faith, and because it would be injurious to
everybody, including the Nation, to leave the matter unsettled, the
report recommended the accommodation of the dispute on terms that would
save innocent purchasers at least a part of the money they had paid or
legally engaged to pay.[1443]

When a bill to carry out the recommendations of the commission for the
payment of the Yazoo claimants came before the House, John Randolph
offered a resolution that went directly to the heart of the controversy
and of all subsequent ones of like nature. It declared that "when the
governors of any people shall have betrayed" their public trust for
their own corrupt advantage, it is the "inalienable right" of that
people "to abrogate the act thus endeavoring to betray them."
Accordingly the Legislature of Georgia had passed the rescinding act.
This was entirely legal and constitutional because "a subsequent
Legislature of an individual State has an undoubted right to repeal any
act of a preceding Legislature, provided such repeal be not forbidden by
the constitution of such State, or of the United States." Neither the
fundamental law of Georgia nor of the Nation forbade the repeal of the
corrupt law of 1795. Claims under this nullified and "usurped" law were
not recognized by the compact of cession between Georgia and the United
States, "nor by any act of the Federal Government." Therefore, declared
Randolph's resolution, "no part of the five millions of acres reserved
for satisfying and quieting claims ... shall be appropriated to quiet or
compensate any claims" derived under the corrupt legislation of the
Georgia Legislature of 1795.[1444] After a hot fight, consideration of
the resolutions was postponed until the next session; but the bill
authorizing the commissioners to compromise with the Yazoo claimants
also went over.[1445]

The matter next came up for consideration in the House, just before the
trial in the Senate of the impeachment of Justice Samuel Chase. A
strong and influential lobby was pressing the compromise. The
legislative agents of the New England Mississippi Company[1446]
presented its case with uncommon ability. In a memorial to
Congress[1447] they set forth their repeated applications to President,
Congress, and the commissioners for protection. They were, they said,
"constantly assured" that the rights of the claimants would be
respected; and that it was expressly for this purpose that the five
million acres had been reserved. For years they had attended sittings of
the commissioners and sessions of Congress "at great cost and heavy
expense."

Would not Congress at last afford them relief? If a "judicial decision"
was desired, let Congress enact a law directing the Supreme Court to
decide as to the validity of their title and they would gladly submit
the matter to that tribunal. It was only because Congress seemed to
prefer settlement by compromise that they again presented the facts and
reasons for establishing their rights. So once more every aspect of the
controversy was discussed with notable ability and extensive learning in
Granger and Morton's brochure.[1448]

The passions of John Randolph, which had never grown cold since as a
youth, a decade previously, he had witnessed the dramatic popular
campaign in Georgia--and which during 1804 had been gathering intense
heat--now burst into a furious flame. Unfortunately for Jefferson, the
most influential agent of the New England claimants was the one
Administration official who had most favors to bestow--Gideon Granger of
Connecticut, the Postmaster-General.[1449] He was the leader of the
lobby which the New England Mississippi Company had mustered in such
force. And Granger now employed all the power of his department, so rich
in contracts and offices, to secure the passage of a bill that would
make effectual the recommendations of Jefferson's commissioners.

As the vote upon it drew near, Granger actually appeared upon the floor
of the House soliciting votes for the measure. Randolph's emotions were
thus excited to the point of frenzy--the man was literally beside
himself with anger. He needed to husband all his strength for the
conduct of the trial of Chase[1450] and to solidify his party, rather
than to waste his physical resources, or to alienate a single
Republican. On the report of the Committee of Claims recommending the
payment of the Yazoo claimants, one of the most virulent and picturesque
debates in the history of the American Congress began.[1451] Randolph
took the floor, and a "fire and brimstone speech"[1452] he made.

"Past experience has shown that this is one of those subjects which
pollution has sanctified," he began. "The press is gagged." The New
England claimants innocent purchasers! "Sir, when that act of stupendous
villainy was passed in 1795 ... it caused a sensation scarcely less
violent than that produced by the passage of the stamp act." Those who
assert their ignorance of "this infamous act" are gross and willful
liars.[1453] To a "monstrous anomaly" like the present case, cried
Randolph, "narrow maxims of municipal jurisprudence ought not, and
cannot be applied.... Attorneys and judges do not decide the fate of
empires."[1454]

Randolph mercilessly attacked Granger, and through him the
Administration itself. Granger's was a practiced hand at such business,
he said. He was one of "the applicants by whom we were beset" in the
Connecticut Reserve scheme, "by which the nation were swindled out of
some three or four millions of acres of land, which, like other bad
titles, had fallen into the hands of innocent purchasers." Granger
"seems to have an unfortunate knack of buying bad titles. His gigantic
grasp embraces with one hand the shores of Lake Erie,[1455] and
stretches with the other to the Bay of Mobile.[1456] Millions of acres
are easily digested by such stomachs.... They buy and sell corruption in
the gross." They gamble for "nothing less than the patrimony of the
people." Pointing his long, bony finger at Granger, Randolph exclaimed:
"Mr. Speaker, ... this same agent is at the head of an Executive
department of our Government.... This officer, possessed of how many
snug appointments and fat contracts, let the voluminous records on your
table, of the mere names and dates and sums declare, ... this officer
presents himself at your bar, at once a party and an advocate."[1457]

The debate continued without interruption for four full days. Every
phase of the subject was discussed exhaustively. The question of the
power of the Legislature to annul a contract; of the power of the
Judiciary to declare a legislative act void because of corruption in the
enactment of it; the competency of Congress to pass upon such disputed
points--these questions, as well as that of the innocence of the
purchasers, were elaborately argued.

The strongest speech in support of the good faith of the New England
investors was made by that venerable and militant Republican and
Jeffersonian, John Findley of Pennsylvania.[1458] He pointed out that
the purchase by members of the Georgia Legislature of the lands sold was
nothing unusual--everybody knew "that had been the case in Pennsylvania
and other states." Georgia papers did not circulate in New England; how
could the people of that section know of the charges of corruption and
the denial of the validity of the law under which the lands were sold?

Those innocent purchasers had a right to trust the validity of the title
of the land companies--the agents had exhibited the deeds executed by
the Governor of Georgia, the law directing the sale to be made, and the
Constitution of the State. What more could be asked? "The respectability
of the characters of the sellers" was a guarantee "that they could not
themselves be deceived and would not deceive others." Among these, said
Findley, was an eminent Justice of the Supreme Court,[1459] a United
States Senator,[1460] and many other men of hitherto irreproachable
standing. Could people living in an old and thickly settled State, far
from the scene of the alleged swindle, with no knowledge whatever that
fraud had been charged, and in need of the land offered--could they
possibly so much as suspect corruption when such men were members of the
selling companies?

Moreover, said Findley--and with entire accuracy--not a Georgia official
charged with venality had been impeached or indicted. The truth was that
if the Georgia Legislature had not passed the rescinding act the
attention of Congress would never have been called to the alleged
swindle. Then, too, everybody knew "that one session of a Legislature
cannot annul the contracts made by the preceding session"; for did not
the National Constitution forbid any State from passing a law impairing
the obligation of contracts?[1461]

Randolph outdid himself in daring and ferocity when he again took the
floor. His speech struck hostile spectators as "more outrageous than the
first."[1462] He flatly charged that a mail contract had been offered to
a member of the House, who had accepted it, but that it had been
withdrawn from him when he refused to agree to support the compromise of
the Yazoo claims. Randolph declared that the plot to swindle Georgia out
of her lands "was hatched in Philadelphia and New York (and I believe
Boston....) and the funds with which it was effected were principally
furnished by moneyed capitalists in those towns."[1463]

At last the resolution was adopted by a majority of 63 to 58,[1464] and
Randolph, physically exhausted and in despair at his overthrow as
dictator of the House, went to his ineffective management of the Chase
impeachment trial.[1465] He prevented for the time being, however, the
passage of the bill to carry out the compromise with the Yazoo
claimants. He had mightily impressed the people, especially those of
Virginia. The Richmond _Enquirer_, on October 7, 1806, denounced the
Yazoo fraud and the compromise of the investors' claims as a "stupendous
scheme of plunder." Senator Giles, in a private conversation with John
Quincy Adams, asserted that "not a man from that State, who should give
any countenance to the proposed compromise, could obtain an election
after it." He avowed that "nothing since the Government existed had so
deeply affected him."[1466]

The debate was published fully in the newspapers of Washington, and it
is impossible that Marshall did not read it and with earnest concern. As
has already been stated, the first case involving the sale of these
Georgia lands had been dropped because of the Eleventh Amendment to the
Constitution, abolishing the right to sue a state in the National
courts. Moreover, Marshall was profoundly interested in the stability of
contractual obligations. The repudiation of these by the Legislature of
Virginia had powerfully and permanently influenced his views upon this
subject.[1467] Also, Marshall's own title to part of the Fairfax estate
had more than once been in jeopardy.[1468] At that very moment a suit
affecting the title of his brother to certain Fairfax lands was pending
in Virginia courts, and the action of the Virginia Court of Appeals in
one of these was soon to cause the first great conflict between the
highest court of a State and the supreme tribunal of the Nation.[1469]
No man in America, therefore, could have followed with deeper anxiety
the Yazoo controversy than did John Marshall.

Again and again, session after session, the claimants presented to
Congress their prayers for relief. In 1805, Senator John Quincy Adams of
Massachusetts and Senator Thomas Sumter of South Carolina urged the
passage of a bill to settle the claims. This led Senator James Jackson
of Georgia to deliver "a violent invective against the claims, without
any specific object."[1470] After Jackson's death the measure passed the
Senate by a vote of 19 to 11, but was rejected in the House by a
majority of 8 out of a total of 116.[1471]

Among the lawyers who went to Washington for the New England Mississippi
Company was a young man not yet thirty years of age, Joseph Story of
Massachusetts, who on his first visit spent much time with Madison,
Gallatin, and the President.[1472] On a second visit, Story asked to
address the House on the subject, but that body refused to hear
him.[1473]

From the first the New England investors had wished for a decision by
the courts upon the validity of their titles and upon the effect of the
rescinding act of the Georgia Legislature; but no way had occurred to
them by which they could secure such a determination from the bench. The
Eleventh Amendment prevented them from suing Georgia; and the courts of
that State were, as we have seen, forbidden by the rescinding act from
entertaining such actions.

To secure a judicial expression, the Boston claimants arranged a
"friendly" suit in the United States Court for the District of
Massachusetts. One John Peck of Boston had been a heavy dealer in
Georgia lands.[1474] On May 14, 1803, he had either sold or pretended to
sell to one Robert Fletcher of Amherst, New Hampshire, fifteen thousand
acres of his holdings for the sum of three thousand dollars. Immediately
Fletcher brought suit against Peck for the recovery of this purchase
money; but the case was "continued by consent" for term after term from
June, 1803, until October, 1806.[1475]

The pleadings[1476] set forth every possible phase of the entire subject
which could be considered judicially. Issues were joined on all points
except that of the title of Georgia to the lands sold.[1477] On this
question a jury, at the October term, 1806, returned as a special
verdict a learned and bulky document. It recited the historical
foundations of the title to the territory in dispute; left the
determination of the question to the court; and, in case the judge
should decide that Georgia's claim to the lands sold was not valid,
found for the plaintiff and assessed his damages at the amount alleged
to have been paid to Peck.

Thereafter the case was again "continued by consent" until October,
1807, when Associate Justice William Cushing of the Supreme Court,
sitting as Circuit Judge, decided in Peck's favor every question raised
by the pleadings and by the jury's special verdict. Fletcher sued out a
writ of error to the Supreme Court of the United States, and so this
controversy came before John Marshall. The case was argued twice, the
first time, March 1-4, 1809, by Luther Martin for Fletcher and by Robert
Goodloe Harper and John Quincy Adams for Peck. There was no decision on
the merits because of a defect of pleadings which Marshall permitted
counsel to remedy.[1478]

During this argument the court adjourned for two hours to attend the
inauguration of James Madison. For the third time Marshall administered
the Presidential oath. At the ball that night, Judge Livingston told
Adams that the court had been reluctant "to decide the case at all, as
it appeared manifestly made up for the purpose of getting the Court's
judgment upon all the points." The Chief Justice himself had mentioned
the same thing to Cranch.

Adams here chronicles an incident of some importance. After delivering
the court's opinion on the pleadings, Marshall "added verbally, that,
circumstanced as the Court are, only five judges attending,[1479] there
were difficulties which would have prevented them from giving any
opinion at this term had the pleadings been correct; and the Court the
more readily forbore giving it, as from the complexion of the pleadings
they could not but see that at the time when the covenants were made the
parties had notice of the acts covenanted against."[1480]

The cause was argued again a year later. This time Joseph Story, so
soon thereafter appointed an Associate Justice, took the place of John
Quincy Adams. Martin's address was technical and, from the record,
appears to have been perfunctory.[1481] On behalf of Peck, two thirds of
the argument for the soundness of his title was devoted to the
demonstration of the validity of that of Georgia. If that were sound,
said Story, the Legislature had a right to sell the land, and a
subsequent Legislature could not cancel the contract when executed. The
Judiciary alone could declare what a law is or had been. Moreover, the
National Constitution expressly forbade a State to pass an act impairing
the obligation of contracts. To overthrow a law because it was corruptly
enacted "would open a source of litigation which could never be closed."
However, "the parties now before the court are innocent of the fraud, if
any has been practiced. They were bona fide purchasers, for a valuable
consideration, without notice of fraud. They cannot be affected by
it."[1482]

On March 16, 1810, Marshall delivered the opinion of the majority of the
Supreme Court. In this he laid the second stone in the structure of
American Constitutional law which bears his name. He held that the
Georgia rescinding act was a violation of the contract clause of the
Constitution and in doing so asserted that courts cannot examine the
motives that induce legislators to pass a law. In arriving at these
profoundly important conclusions his reasoning was as follows:

Did the Georgia sale act of 1795 violate the Constitution of that State?
An act of a legislature was not to be set aside "lightly" on "vague
conjecture" or "slight implication." There was no ground for asserting
that the Georgia Legislature transcended its constitutional powers in
passing the sale act.[1483] Had the corruption of the Legislature
destroyed the title of Peck, an innocent purchaser? It was, cautiously
said Marshall, doubtful "how far the validity of a law depends upon the
motives of its framers," particularly when the act challenged authorized
a contract that was executed according to the terms of it. Even if such
legislation could be set aside on the ground of fraud in the enactment
of it, to what extent must the impurity go?

"Must it be direct corruption, or would interest or undue influence of
any kind be sufficient? Must the vitiating cause operate on a majority,
or on what number of the members? Would the act be null, whatever might
be the wish of the nation, or would its obligation or nullity depend
upon the public sentiment?"

The State of Georgia did not bring this action; nor, "by this count" of
the complaint, did it appear that the State was dissatisfied. On the
face of the pleadings a purchaser of Georgia land declares that the
seller had no title because "some of the members of the legislature were
induced to vote in favor of the law, which constituted the contract
[with the original grantees], by being promised an interest in it, and
that therefore the act is a mere nullity." A tribunal "sitting as a
court of law" cannot decide, in a suit between private parties, that the
law of a State "is a nullity in consequence of the impure motives which
influenced certain members of the legislature which passed the
law."[1484] Conceding, for the sake of argument, that "the original
transaction was infected with fraud," the purchasers from the land
companies were innocent according to the records before the court. Yet,
if the rescinding act were valid, it "annihilated their rights.... The
legislature of Georgia was a party to this transaction; and for a party
to pronounce its own deed invalid" was an assertion "not often heard in
courts of justice." It was true, as urged, that "the real party ... are
the people"; but they can act only through agents whose "acts must be
considered as the acts of the people." Should these agents prove
unfaithful, the people can choose others to undo the nefarious work, "if
their contracts be examinable" by legislation.[1485]

Admit that the State "might claim to itself the power of judging in its
own case, yet there are certain great principles of justice ... that
ought not to be entirely disregarded." Thus, at first, Marshall rested
his opinion on elementary "principles of justice," rather than on the
Constitution. These "principles" required that an innocent purchaser
should not suffer. "If there be any concealed defect, arising from the
conduct of those who had held the property long before he acquired it,
of which he had no notice, that concealed defect cannot be set up
against him. He has paid his money for a title good at law; he is
innocent, whatever may be the guilt of others, and equity will not
subject him to the penalties attached to that guilt. All titles would be
insecure, and the intercourse between man and man would be very
seriously obstructed, if this principle be overturned." The John
Marshall who sat in the Virginia Legislature[1486] is speaking now.

Even if the Legislature could throw aside all "rules of property," still
the rescinding act is "supported by its power alone, and the same power
may divest any other individual of his lands, if it shall be the will of
the legislature so to exert it." To make this perfectly clear, Marshall
defined the theory relied upon by the opponents of the Yazoo fraud--"The
principle is this: that a legislature may, by its own act, divest the
vested estate of any man whatever, for reasons which shall, by itself,
be deemed sufficient."[1487]

Supposing that the Georgia sale act had been procured by fraud;
nevertheless, "the grant, when issued, conveyed an estate in fee-simple
to the grantee, clothed with all the solemnities which law can bestow.
This estate was transferable; and those who purchased parts of it were
not stained by that guilt which infected the original transaction." They
could not, therefore, be made to suffer for the wrong of another.

Any legislature can, of course, repeal the acts of a preceding one, and
no legislature can limit the powers of its successor. "But, if an act be
done under a law, a succeeding legislature cannot undo it. The past
cannot be recalled by the most absolute power." The purchase of estates
from the land companies was, by virtue of law, "a fact, and cannot cease
to be a fact," even if the State should deny that it was a fact.

"When, then, a law is in its nature a contract, where absolute rights
have vested under that contract, a repeal of the law cannot divest those
rights." If it can, such a power is "applicable to the case of every
individual in the community." Regardless of written constitutions, the
"nature of society and of government" prescribes "limits to the
legislative power." But "where are they to be found, if the property of
an individual, fairly and honestly acquired, may be seized without
compensation?" Again Marshall founds his reasoning, not on the
Constitution, but on fundamental principles. At last, however, he
arrives at the Constitution.

Georgia was not a single sovereign power, but "a part of a large
empire, ... a member of the American Union; and that Union has a
constitution ... which imposes limits to the legislatures of the several
states, which none claim a right to pass." Had the Legislature of
Georgia overstepped those limits? "Is a grant a contract?" The answer to
that depended upon the definition of a contract. On this decisive point
Marshall cited Blackstone: "A contract executed ... differs in nothing
from a grant." This was the exact case presented by the Georgia sale
act and the fulfillment, by the purchasers, of the conditions of it. "A
party is, therefore, always estopped by his own grant," one obligation
of which is that he shall never attempt "to re-assert that right" thus
disposed of.

By this reasoning Marshall finally came to the conclusion that the
Constitution plainly covered the case. That instrument did not
distinguish between grants by individuals and those by States. If a
State could not pass a law impairing the obligation of contracts between
private persons, neither could it invalidate a contract made by itself.

Indeed, as everybody knew, said Marshall, "the framers of the
constitution viewed, with some apprehension, the violent acts which
might grow out of the feelings of the moment; and that the people of the
United States, in adopting that instrument, have manifested a
determination to shield themselves and their property from the effects
of those sudden and strong passions to which men are exposed."
Therefore, it was provided in America's fundamental law that "no state
shall pass any bill of attainder, ex post facto law, or law impairing
the obligation of contracts."[1488]

Such limitations, declared Marshall, constitute a bill of rights for the
people of each State. Would any one pretend to say that a State might
enact an _ex post facto_ law or pass a bill of attainder? Certainly not!
How then could anybody pretend that a State could by legislation annul a
contract?

Thus far the opinion of the court was unanimous.[1489] As to the Indian
title, Justice Johnson dissented. On the want of power of the Georgia
Legislature to annul the sale act of 1795, the Republican Associate
Justice was, however, even more emphatic than the soft-spoken Federalist
Chief Justice. But he ended by a rebuke which, if justified, and if the
case had not been so important and the situation so critical, probably
would have required the peremptory dismissal of the appeal and the
disbarment of counsel appearing in the cause. Justice Johnson
intimated--all but formally charged--that the case was collusive.

"I have been very unwilling," he said, "to proceed to the decision of
this cause at all. It appears to me to be[ar] strong evidence, upon the
face of it, of being a mere feigned case. It is our duty to decide upon
the rights but not upon the speculations of parties. My confidence,
however, in the respectable gentlemen who have been engaged for the
parties, had induced me to abandon my scruples, in the belief that they
would never consent to impose a mere feigned case upon this
court."[1490]

One cannot patiently read these words. Far better had Justice William
Johnson denounced Fletcher _vs._ Peck for what everybody believed it to
be, and what it really was, or else had refrained from raising the
question, than in these unctuous sentences to have shifted the
responsibility upon the shoulders of the attorneys who appeared before
the Supreme Bench. The conclusion seems inescapable that had not
Jefferson, who placed Johnson on the Supreme Bench, and Jefferson's
Secretary of State and political legatee, James Madison, ardently
desired the disposition which Marshall made of the case, Justice Johnson
would have placed on record a stronger statement of the nature of this
litigation.

The fact that Marshall rendered an opinion, under the circumstances, is
one of the firmest proofs of his greatness. As in Marbury _vs._ Madison,
the supremacy of the National Judiciary had to be asserted or its
inferiority conceded, so in Fletcher _vs._ Peck, it was necessary that
the Nation's highest court should plainly lay down the law of public
contract, notify every State of its place in the American system, and
announce the limitations which the National Constitution places upon
each State.

Failure to do this would have been to sanction Georgia's rescinding act,
to encourage other States to take similar action, and to render insecure
and litigious numberless titles acquired innocently and in good faith,
and multitudes of contracts entered into in the belief that they were
binding. A weaker man than John Marshall, and one less wise and
courageous, would have dismissed the appeal or decided the case on
technical points.

Marshall's opinion did more than affect the controversy in Congress over
the Yazoo lands. It announced fundamental principles for the guidance of
the States and the stabilizing of American business.[1491] It increased
the confidence in him of the conservative elements and of all
Nationalists. But, for the same reason, it deepened the public distrust
of him and the popular hostility toward him.

Although Marshall's opinion gave steadiness to commercial intercourse at
a time when it was sadly needed, checked for the moment a flood of
contract-breaking laws, and asserted the supremacy of Nationalism over
Localism, it also strengthened many previous speculations that were at
least doubtful and some that were corrupt.[1492] Moreover, it furnished
the basis for questionable public grants in the future. Yet the good
effects of it fairly outweighed the bad. Also it taught the people to be
careful in the choice of their representatives in all legislative
bodies; if citizens will not select honest and able men as their public
agents, they must suffer the consequences of their indifference to their
own affairs.

Whatever may be thought of other aspects of this case, it must be
conceded that Marshall could not have disobeyed the plain command of the
Constitution which forbids any State to impair the obligation of
contracts. That the Georgia Legislature was guilty of such violation
even Jefferson's appointee, Justice Johnson, declared more emphatically
than did Marshall himself. If Johnson had asserted that a legislative
grant, accepted by the grantee, was not a contract, Marshall's opinion
would have been fatally wounded.

It had now been Marshall's fate to deliver opinions in three cases[1493]
which helped to assure his future fame, but which, at the moment, were
highly unwelcome to the people. Throughout the country, at the end of
the first decade of the nineteenth century, a more unpopular person
could not have been found than that wise, brave, gentle man, the Chief
Justice of the United States.

Marshall's opinion and the decision of the court had no practical effect
whatever, so far as the legal result of it was concerned, but it had
some influence in the settlement of the controversy by Congress. The
Eleventh Congress was in session when Fletcher _vs._ Peck was decided,
and the New England Yazoo claimants immediately presented another
petition for relief. Soon after Marshall's opinion was published,
Randolph moved that the New England memorial be referred to the
Committee of Claims with instructions to report to the House. The
matter, he said, must not go by default. He wanted nothing "done,
directly or indirectly, by any act of commission or omission, that
should give any the slightest degree of countenance to that claim."

Randolph thus brought Marshall's opinion before the House: "A judicial
decision, of no small importance, had, during the present session of
Congress, taken place in relation to that subject." To let the business
rest, particularly at this time, "would wear the appearance abroad of
acquiescence [by the House] in that judicial decision." The Yazoo
claimants must not be allowed to profit in this way by the action of the
Supreme Court as they would surely do if not prevented, since "never has
a claim been pressed upon the public with such pertinacity, with such
art, with such audacity."[1494]

George M. Troup of Georgia, slender, handsome, fair-haired,[1495] then
thirty years old and possessing all the fiery aggressiveness of youth,
sprang to his feet to add his reproof of Marshall and the Supreme Court.
He declared that the opinion of the Chief Justice, in Fletcher _vs._
Peck, was a pronouncement "which the mind of every man attached to
Republican principles must revolt at."[1496]

Because the session was closing and from pressure of business, Randolph
withdrew his motion to refer the memorial to the Committee, and offered
another: "That the prayer of the petition of the New England Mississippi
Land Company is unreasonable, unjust, and ought not to be granted."
This, if passed, would amount to a condemnation by the House of the
decision of the Supreme Court of the United States. All Federalists and
conservative Republicans combined to defeat it, and the resolution was
lost by a vote of 46 yeas to 54 nays.[1497]

But Troup would not yield. On December 17 he insisted that the National
Government should resist by force of arms the judgment of the Supreme
Court. The title to the lands was in the United States, he said, yet the
court had decided it to be in the Yazoo claimants. "This decision must
either be acquiesced in or resisted by the United States.... If the
Government ... would not submit to this decision, ... what course could
be taken but to employ the whole military force ... to eject all persons
not claiming under the authority of the United States?" Should those "in
whose behalf" Marshall's opinion was rendered, take possession, either
the National Government must "remove them by ... military power, or
tamely acquiesce in the lawless aggression."[1498]

But Marshall and the Supreme Court were to be attacked still more openly
and violently. Strengthened by the decision in Fletcher _vs._ Peck, the
Yazoo claimants pressed Congress harder than ever for payment. On
January 20, 1813, a bill from the Senate providing for the payment of
the claims came up for consideration in the House.

Troup instantly took the floor, moved its rejection and delivered such
an excoriation of the Supreme Court as never before was or has since
been heard in Congress. He began by reciting the details of the "hideous
corruption." Such legislation was void _ab initio_. The original
speculators had made fortunes out of the deal, and now Congress was
asked to make the fortunes of the second-hand speculators. For years the
House had, most righteously, repelled their audacious assaults; but now
they had devised a new weapon of attack.

They had secured the assistance of the Judiciary. "Two of the
speculators combined and made up a fictitious case, a feigned issue for
the decision of the Supreme Court," asserted Troup. "They presented
precisely those points for the decision of the Court which they wished
the Court to decide, and the Court did actually decide them as the
speculators themselves would have decided them if they had been in the
place of the Supreme Court.

"The first point was, whether the Legislature of Georgia had the _power_
to sell the territory.

"Yes, said the Judges, they had.

"Whether by the Yazoo act an estate did vest in the original grantees?

"Yes, said the Judges, it did.

"Whether it was competent to any subsequent Legislature to set aside the
act on the ground of fraud and corruption?

"No, said the Judges, it was not.... No matter, say the Judges, what the
nature or extent of the corruption, ... be it ever so nefarious, it
could not be set aside....

"The [legal] maxim that third purchasers without notice shall not be
affected by the fraud of the original parties" had, declared Troup, been
wielded by the Judges for the benefit of the speculators and to the ruin
of the country.

"Thus, sir, by a maxim of English law are the rights and liberties of
the people of this country to be corruptly bartered by their
Representatives.

"It is this decision of the Judges which has been made the basis of the
bill on your table--a decision shocking to every free Government,
sapping the foundations of all your constitutions, and annihilating at a
breath the best hope of man.

"Yes, sir," exclaimed the deeply stirred and sincerely angered Georgian,
"it is proclaimed by the Judges, and is now to be sanctioned by the
Legislature, that the Representatives of the people may corruptly betray
the people, may corruptly barter their rights and those of their
posterity, and the people are wholly without any kind of remedy
whatsoever.

"It is this monstrous and abhorrent doctrine which must startle every
man in the nation, that you ought promptly to discountenance and
condemn."

In such fashion the enraged Troup ran on; and he expressed the
sentiments of the vast majority of the inhabitants of the United States.
The longer the Georgia champion of popular justice and the rights of the
States talked, the more unrestrained became his sentiments and his
expression of them: "If, Mr. Speaker, the arch-fiend had in ... his
hatred to mankind resolved the destruction of republican government on
earth, he would have issued a decree like that of the judges"--the
opinion of John Marshall in Fletcher _vs._ Peck. "Why ... do the judges
who passed this decision live and live unpunished?... The foundations of
the Republic are shaken and the judges sleep in tranquillity at home....
The question ... had been so often discussed" that it was "well
understood by every man in the nation." Troup prophesied, therefore,
that "no party in this country, however deeply seated in power, can long
survive the adoption of this measure."[1499]

But the Federalist-Jeffersonian Yazoo coalition held firm and Troup's
motion to reject the Senate Yazoo bill was lost by a vote of 55 to
59.[1500] The relief bill was delayed, however, and the claimants were
compelled to nurse their eighteen-year-old disappointment until another
session of Congress convened.

The following year the bill to settle the Yazoo claims was again
introduced in the Senate and passed by that body without opposition. On
February 28, 1814, the measure reached the House.[1501] On the second
reading of it, Troup despairingly moved that the bill be rejected. The
intrepid and resourceful John Randolph had been beaten in the preceding
Congressional election, the House no longer echoed with his fearless
voice, and his dominant personality no longer inspired his followers or
terrified his enemies. Troup could not bend the mighty bow that Randolph
had left behind and that he alone could draw. But the dauntless Georgian
did his best. Once more he went over the items of this "circle of
fraud," as he branded it. Success of the "plunderers" now depended on
the affirmation by Congress of Marshall's opinion, which, said Troup,
"overturns Republican Government. You cannot, you dare not, sanctify
this doctrine." If you do so, then "to talk of the rights of the people
after this is insult and mockery."[1502]

Long did Troup argue and denounce. He could not keep his eager fingers
from the throat of John Marshall and the Supreme Court. "The case of
Fletcher and Peck was a decision of a feigned issue, made up between two
speculators, to decide certain points, in the decision of which they
were interested.... Whenever it is conceded that it is competent to the
Supreme Court, in a case between A and B, to take from the United States
fifty [_sic_] millions of acres of land, it will be time for the
Government to make a voluntary surrender of the public property to
whosoever will have it.... Sir, I am tired and disgusted with this
subject."[1503]

Robert Wright of Maryland urged the passage of the bill.
"He ... dwelt ... on the sanctity of the title of the present claimants
under the decision of the Supreme Court, against whose awards he hoped
never to see the bayonet employed. He feared not to advocate this bill
on account of the clamor against it. Let justice be done though the
heavens fall."[1504]

Weaker and ever weaker grew the assaults of the opponents against
Marshall's opinion and the bill to reimburse the Yazoo claimants. In
every case the speakers supported or resisted the bill solely according
to the influence of their constituents. Considerations of local
politics, and not devotion to the Constitution or abhorrence of fraud,
moved the Representatives. The House voted, 56 to 92, against Troup's
motion to reject the bill.[1505] Finally the measure was referred to a
select committee, with instructions to report.[1506] Almost immediately
this committee reported in favor of the Yazoo claimants.[1507] No time
was lost and the friends of the bill now crowded the measure to a vote
with all the aggressive confidence of an assured majority. By a vote of
84 yeas to 76 nays, five millions of dollars were appropriated for
reimbursement to the purchasers of the Yazoo lands.[1508]

Daniel Webster, who was serving his first term in the House and
supported the bill, thus describes the situation at the time of its
passage: "The Yazoo bill is through, passed by eight majority. It
excited a great deal of feeling. All the Federalists supported the bill,
and some of the Democrats. Georgians, and some Virginians and
Carolinians, opposed it with great heat.... Our feeling was to get the
Democratic support of it."[1509]

Thus John Marshall's great opinion was influential in securing from
Congress the settlement of the claims of numerous innocent investors who
had, in good faith, purchased from a band of legislative corruptionists.
Of infinitely more importance, however, is the fact that Marshall's
words asserted the power of the Supreme Court of the United States to
annul State laws passed in violation of the National Constitution, and
that throughout the Republic a fundamental principle of the law of
public contract was established.


FOOTNOTES:

[1359] See _infra_, 550.

[1360] Affidavit of Clem Lanier, _Am. State Papers, Public Lands_, I,
145.

[1361] Affidavit of Peter L. Van Allen, _ib._

[1362] _Ib._ It would appear that one hundred and fifty thousand acres
were allotted to the thrifty Scotch legislator. He sold them for $7500.

[1363] Affidavit of John Thomas, Jr., _Am. State Papers, Public Lands_,
I, 148.

[1364] Affidavit of Philip Clayton, _ib._ 146.

[1365] Affidavit of John Shepperd, _ib._

[1366] About sixty affidavits were made to show the venality of members
of the Legislature. Of these, twenty-one are printed in _ib._ 144-49.

[1367] Harris: _Georgia from the Invasion of De Soto to Recent Times_,
127-28; White: _Statistics of the State of Georgia_, 50; Chappell:
_Miscellanies of Georgia_, 93-95.

These writers leave the unjust inference that Wilson was one of those
who were corrupting the Legislature. This is almost certainly untrue.
For a quarter of a century Wilson had been a heavy speculator in Indian
lands, and it appears reasonable that he took this money to Augusta for
the purpose of investment. When the deal was consummated, the Justice
held shares to the amount of at least three quarters of a million of
acres. (Chappell, 94.)

[1368] _Ib._ 95.

[1369] Gunn's reëlection was the first step in the conspiracy. Not until
that was accomplished was a word said about the sale of the lands.
Immediately after the Legislature had chosen Gunn for a second term in
the National Senate, however, the bill was introduced and the campaign
of intimidation and bribery launched, to force its passage. (_Ib._
82-83.)

[1370] See Mathews's reasons, as quoted in the Rescinding Act of 1796,
_Am. State Papers, Public Lands_, I, 156.

[1371] Chappell, 86.

[1372] The claims of Spain to the territory had been a serious cloud on
the title. In October, 1795, the treaty with the Spanish Government,
which removed this defect, was published. Senator James Gunn had
knowledge that the treaty would be negotiated long before it was made
known to the world or even concluded. This fact was one of the reasons
for the mad haste with which the corrupt sale act was rushed through the
Georgia Legislature. (See Chappell, 72-73.)

[1373] Gunn was a perfect example of the corrupt, yet able, bold, and
demagogical politician. He was a master of the arts alike of cajolery
and intimidation. For a vivid account of this man see Chappell, 99-105.

[1374] Haskins: _Yazoo Land Companies_, 24.

[1375] _Am. State Papers, Public Lands_, I, 151-52.

[1376] Chappell, 87.

[1377] "A small smoky cabin with a dirt floor was the home of most of
them." (Smith: _Story of Georgia and the Georgia People_, 181.) For a
good description of pioneer houses and manner of living, see Ramsey:
_Annals of Tennessee to the End of the Eighteenth Century_, 715-16.

[1378] Smith, 170-71.

[1379] Morse's _American Gazetteer_, as quoted in Bishop: _Georgia
Speculation Unveiled_, 3-4.

[1380] Adams: _U.S._ I, 303.

[1381] The South Carolina Yazoo Company, 10,000,000 acres for $66,964;
The Virginia Yazoo Company, 11,400,000 acres for $93,741; The Tennessee
Company, 4,000,000 acres for $46,875. (Haskins, 8.)

[1382] _Works_: Ford, VI, 55-57.

[1383] Moultrie _vs._ Georgia, 1796, dismissed in 1798, _Am. State
Papers, Public Lands_, I, 167; and see vol. II, 83-84, of this work.

[1384] Chappell, 92-93.

[1385] _Ib._ 67-68; Haskins, 13-15.

[1386] "No men stood higher in Georgia than the men who composed these
several companies and the members of the Legislature who made the sale."
(Smith, 173.)

[1387] See Haskins, 25, and sources there cited.

[1388] The effect of Whitney's invention is shown in striking fashion by
the increase of cotton exports. In 1791 only 189,500 pounds were
exported from the entire United States. Ten years later Georgia alone
exported 3,444,420 pounds. (Jones and Dutcher: _Memorial History of
Augusta, Georgia_, 165.)

[1389] Priest: _Travels in the United States_, 132; and see Haskins, 3.

Otis speaks of the "land jobbing prospectors," and says that "money is
the object here [Boston] with all ranks and degrees." (Otis to Harper,
April 10, 1807, Morison: _Otis_, I, 283.)

The national character "is degenerated into a system of stock-jobbing,
extortion and usury.... By the God of Heaven, if we go on in this way,
our nation will sink into disgrace and slavery." (Tyler to Madison, Jan.
15, 1810, Tyler, I, 235.)

[1390] See vol. I, 428, of this work.

[1391] It was, however, among the last items proposed to the Convention,
which had been at work more than three months before the "contract
clause" was suggested. Even then the proposal was only as to _new_
States. The motion was made by Rufus King of New York on August 28.
Gouverneur Morris objected. "This would be going too far," he said.
George Mason of Virginia said the same thing. Madison thought "a
negative on the State laws could alone secure the effect." James Wilson
of Pennsylvania warmly supported King's motion. John Rutledge of South
Carolina moved, as a substitute for King's proposition, that States
should not pass "bills of attainder nor retrospective laws." (_Records,
Fed. Conv._: Farrand, II, 440.) This carried, and nothing more appears
as to the contract clause until it was included by the Committee on
Style in its report of September 12. (_Ib._ 596-97.) Elbridge Gerry of
Massachusetts strongly favored it and even wanted Congress "to be laid
under the like prohibitions." (_Ib._ 619.) The Convention refused to
insert the word "previous" before "obligation." (_Ib._ 636.)

In this manner the provision that "no state shall pass any law impairing
the obligation of contracts" was inserted in the Constitution. The
framers of that instrument apparently had in mind, however, the danger
of the violation of contracts through depreciated paper money rather
than the invalidation of agreements by the direct action of State
Legislatures. (See speech of William R. Davie in the North Carolina
Convention, July 29, 1788, _ib._ III, 349-50; speech of James McHenry
before the Maryland House of Delegates, Nov. 29, 1787, _ib._ 150; and
speech of Luther Martin before same, same date, _ib._ 214; also see
Madison to Ingersoll, Feb. 2, 1831, _ib._ 495.)

Madison best stated the reason for the adoption of the contract clause:
"A violations [_sic_] of Contracts had become familiar in the form of
depreciated paper made a legal tender, of property substituted for
money, of Instalment laws, and of the occlusions of the Courts of
Justice; although evident that all such interferences affected the
rights of other States, relatively Creditor, as well as Citizens
Creditors within the State." (_Ib._ 548.) Roger Sherman and Oliver
Ellsworth explained briefly that the clause "was thought necessary as a
security to commerce." (Letter to the Governor of Connecticut, Sept. 26,
1787, _ib._ 100.)

[1392] Chappell, 67.

[1393] Harris, 130.

[1394] Harris, 131.

[1395] Feb. 27, 1795, _Annals_, 3d Cong. 1st and 2d Sess. 838-39.

[1396] _Ib._ 844-45. The silence of Jackson at this time is all the more
impressive because the report of the Attorney-General would surely be
used by the land companies to encourage investors to buy. Both Jackson
and Gunn were present when King offered his resolution. (_Annals_, 3d
Cong. 1st and 2d Sess. 846.) Jackson declined to vote on the passage of
a House bill "making provision for the purposes of treaty" with the
Indians occupying the Yazoo lands. (_Ib._ 849-50.)

[1397] Smith, 174.

[1398] Robert Watkins.

[1399] See Report of the Commissioners, _Am. State Papers, Public
Lands_, I, 132-35.

[1400] The "Yazoo men" carried two counties.

[1401] Chappell, 126.

[1402] The outgoing Governor, George Mathews, in his last message to the
Legislature, stoutly defended his approval of the sale act. He
attributed the attacks upon him to "base and malicious reports,"
inspired by "the blackest and the most persevering malice aided by
disappointed avarice." The storm against the law was, he said, due to
"popular clamour." (Message of Governor Mathews, Jan. 28, 1796, Harper:
_Case of the Georgia Sales on the Mississippi Considered_, 92-93.)

[1403] _Am. State Papers, Public Lands_, I, 157.

[1404] _Ib._ 158.

[1405] _Am. State Papers, Public Lands_, I, 158.

[1406] The punctilious Legislature failed to explain that one hundred
thousand dollars of the purchase money had already been appropriated and
expended by the State. This sum they did not propose to restore.

[1407] "Or his deputy."

[1408] Report of the joint committee, as quoted in Stevens: _History of
Georgia from its First Discovery by Europeans to the Adoption of the
Present Constitution in 1798_, II, 491-92.

[1409] Stevens, 492-93. Stevens says that there is no positive proof of
this incident; but all other writers declare that it occurred. See
Knight: _Georgia's Landmarks, Memorials and Legends_, I, 152-53; also
Harris, 135.

[1410] Adams: _Randolph_, 23; also Garland: _Life of John Randolph of
Roanoke_, I, 64-68.

[1411] See _infra_, 577-81; and _supra_, chap. IV.

[1412] For instance, Wade Hampton immediately sold the entire holdings
of The Upper Mississippi Company, millions of acres, to three South
Carolina speculators, and it is quite impossible that they did not know
of the corruption of the Georgia Legislature. Hampton acquired from his
partners, John B. Scott and John C. Nightingale, all of their interests
in the company's purchase. This was done on January 16 and 17,
immediately after Governor Mathews had signed the deed from the State.
Seven weeks later, March 6, 1795, Hampton conveyed all of this land to
Adam Tunno, James Miller, and James Warrington. (_Am. State Papers,
Public Lands_, I, 233.) Hampton was a member of Congress from South
Carolina.

[1413] _State of Facts, shewing the Right of Certain Companies to the
Lands lately purchased by them from the State of Georgia._

[1414] The Georgia Mississippi Company, The Tennessee Company, and The
Georgia Company. (See Haskins, 29.)

[1415] Eleven million acres were purchased at eleven cents an acre by a
few of the leading citizens of Boston. This one sale netted the Yazoo
speculators almost a million dollars, while the fact that such eminent
men invested in the Yazoo lands was a strong inducement to ordinary
people to invest also. (See Chappell, 109.)

[1416] See Chappell, 110-11.

[1417] Ames to Gore, Feb. 24, 1795, Ames, I, 168. Ames's alarm, however,
was that the Georgia land sale "threatens Indian, Spanish, and civil,
wars." The immorality of the transaction appears to have been unknown to
him.

[1418] Haskins, 30.

[1419] Harper, 109. Hamilton's opinion is dated March 25, 1796. In
Harper's pamphlet it is incorrectly printed 1795.

[1420] _Annals_, 3d Cong. 1st and 2d Sess. 1231.

[1421] _Annals_, 3d Cong. 1st and 2d Sess. 1251-54. The Georgia act was
transmitted to Washington privately.

[1422] _Ib._ 1255, 1262-63.

[1423] _Ib._ 1282-83.

[1424] _Am. State Papers, Public Lands_, I, 341.

[1425] _Ib._ 71.

[1426] Bishop's pamphlet was called _Georgia Speculation Unveiled_.

[1427] Bishop, 6.

[1428] _Ib._ 11.

[1429] _Ib._

[1430] _Ib._ 29-32.

[1431] _Ib._ 92.

[1432] _Ib._ 144.

[1433] Harper's opinion bears, opposite his signature, this statement:
"Considered at New-York August 3d, 1796." Beyond all doubt it had been
submitted to Hamilton--perhaps prepared in collaboration with him.
Harper was himself a member of one of the purchasing companies and in
the House he later defended the transaction. (See _Annals_, 5th Cong. 2d
Sess. 1277.)

[1434] Harper, 16.

[1435] _Ib._ 14.

[1436] _Ib._ 49-50.

[1437] _Ib._ 50. Here Harper quotes Hamilton's opinion.

[1438] _Ib._ 50-53. Harper's pamphlet is valuable as containing, in
compact form, all the essential documents relating to Georgia's title as
well as the sale and rescinding acts. Other arguments on both sides
appeared. One of the ablest of these was a pamphlet by John E. Anderson
and William J. Hobby, attorneys of Augusta, Georgia, and published at
that place in 1799 "at the instance of the purchasers." It is entitled:
_The Contract for the Purchase of the Western Territory Made with the
Legislature of Georgia in the Year 1795, Considered with a Reference to
the Subsequent Attempts of the State to Impair its Obligations_.

[1439] See report of Attorney-General Charles Lee, April 26, 1796, _Am.
State Papers, Public Lands_, I, 34; report of Senator Aaron Burr, May
20, 1796, _ib._ 71; report of Senator James Ross, March 2, 1797, _ib._
79.

[1440] Except by John Milledge of Georgia, who declared that "there was
no legal claim upon ... any part of that territory." Robert Goodloe
Harper said that that question "must be determined in a Court of
Justice," and argued for an "amicable settlement" of the claims. He
himself once had an interest in the purchase, but had disposed of it
three years before when it appeared that the matter must come before
Congress (_Annals_, 5th Cong. 2d Sess. 1277-78); the debate occupied
parts of two days (see also _ib._ 1298-1313). In view of the heated
controversy that afterward occurred, it seems scarcely credible that
almost no attention was given in this debate to the fraudulent character
of the transaction.

[1441] May 10 1800, Sess. I, chap. 50, _U.S. Statutes at Large_, II, 69.

[1442] The entire commission was composed of three of the five members
of Jefferson's Cabinet, to wit: James Madison, Secretary of State;
Albert Gallatin, Secretary of the Treasury; and Levi Lincoln,
Attorney-General.

[1443] Report of the Commissioners, _Am. State Papers, Public Lands_, I,
132-35. "The interest of the United States, the tranquillity of those
who may hereafter inhabit that territory, and various equitable
considerations which may be urged in favor of most of the present
claimants, render it expedient to enter into a compromise on reasonable
terms."

[1444] _Annals_, 8th Cong. 1st Sess. 1039-40.

[1445] _Ib._ 1099-1122, 1131-70.

[1446] Perez Morton and Gideon Granger. Morton, like Granger, was a
Republican and a devoted Jeffersonian. He went annually to Washington to
lobby for the Yazoo claimants and assiduously courted the President. In
Boston the Federalists said that his political activity was due to his
personal interest in the Georgia lands. (See _Writings, J. Q. A._: Ford,
III, 51-53.)

[1447] _Memorial of the Agents of the New England Mississippi Company to
Congress, with a Vindication of their Title at Law annexed_.

[1448] This document, issued in pamphlet form in 1804, is highly
important. There can be little doubt that Marshall read it attentively,
since it proposed a submission of the acrimonious controversy to the
Supreme Court.

[1449] The Postmaster-General was not made a member of the Cabinet until
1829.

[1450] See _supra_, chap. IV.

[1451] _Annals_, 8th Cong. 2d Sess. 1023.

[1452] Cutler, II, 182.

[1453] _Annals_, 8th Cong. 2d Sess. 1024. To such extravagance and
inaccuracy does the frenzy of combat sometimes drive the most honest of
men. When he made these assertions, John Randolph knew that scores of
purchasers from the land companies had invested in absolute good faith
and before Georgia had passed the rescinding act. His tirade done,
however, this inexplicable man spoke words of sound though misapplied
statesmanship.

[1454] _Ib._ 1029-30.

[1455] Referring to Granger's speculations in the Western Reserve.

[1456] The Yazoo deal.

[1457] _Annals_, 8th Cong. 2d Sess. 1031.

[1458] Findley was one of those who led the fight against the
ratification of the Constitution in the Pennsylvania Convention. (See
vol. I, 327-38, of this work.)

[1459] James Wilson.

[1460] James Gunn.

[1461] _Annals_, 8th Cong. 2d Sess. 1080-89.

[1462] Cutler, II, 182.

[1463] _Annals_, 8th Cong. 2d Sess. 1100-08.

[1464] _Ib._ 1173.

[1465] See _supra_, chap. IV.

[1466] _Memoirs, J. Q. A._: Adams, I, 343.

[1467] See vol. I, 224-41, of this work.

[1468] _Ib._ 191, 196; and vol. II, 206.

[1469] Martin _vs._ Hunter's Lessees; see vol. IV, chap, III, of this
work.

[1470] _Memoirs, J. Q. A._: Adams, I, 381; also see _ib._ 389, 392,
404-05, 408-09, 417-19.

[1471] Haskins, 38.

[1472] Story to Fay, May 30, 1807, Story, I, 150-53; and see Cabot to
Pickering, Jan. 28, 1808. Lodge: _Cabot_, 377.

[1473] _Annals_, 10th Cong. 1st Sess. 1601-13.

[1474] See Abstract, _Am. State Papers, Public Lands_, I, 220-34.

[1475] Records, U.S. Circuit Court, Boston.

[1476] Judge Chappell asserts that the pleadings showed, on the face of
them, that the case was feigned. (See Chappell, 135-36.)

[1477] Fletcher _vs._ Peck, 6 Cranch, 87-94.

[1478] Fletcher _vs._ Peck, 6 Cranch, 127.

[1479] Justices Chase and Cushing were absent because of illness.

[1480] _Memoirs, J. Q. A._: Adams, I, 546-47.

[1481] _Memoirs, J. Q. A._: Adams, I, 115.

On this occasion Martin was so drunk that the court adjourned to prevent
him from completing his argument. (See _Md. Hist. Soc. Fund-Pub. No.
24_, 35.) This was the first time that drink seems to have affected him
in the discharge of his professional duties. (See _supra_, footnote to
185-86.)

[1482] 6 Cranch, 123.

[1483] 6 Cranch, 128-29.

[1484] 6 Cranch, 130-31.

[1485] _Ib._ 132-33.

[1486] See vol. I, 202, of this work.

[1487] 6 Cranch, 133-34.

[1488] 6 Cranch, 137-38.

[1489] _Ib._ 139.

[1490] 6 Cranch, 147-48.

[1491] At the risk of iteration, let it again be stated that, in
Fletcher _vs._ Peck, Marshall declared that a grant by a State, accepted
by the grantees, is a contract; that the State cannot annul this
contract, because the State is governed by the National Constitution
which forbids any State to pass any law "impairing the obligation of
contracts"; that even if the contract clause were not in the
Constitution, fundamental principles of society protect vested rights;
and that the courts cannot inquire into the motives of legislators no
matter how corrupt those motives may be.

[1492] For the first two decades of the National Government land frauds
were general. See, for example, letter of Governor Harrison of Indiana,
Jan. 19, 1802, _Am. State Papers, Public Lands_, I, 123; report of
Michael Leib, Feb. 14, 1804, _ib._ 189; and letter of Amos Stoddard,
Jan. 10, 1804, _ib._ 193-94.

[1493] Marbury _vs._ Madison, the Burr trial, and Fletcher _vs._ Peck.

[1494] _Annals_, 11th Cong. 2d Sess. 1881.

[1495] Harden: _Life of George M. Troup_, 9.

[1496] _Annals_, 11th Cong. 2d. Sess. 1882.

[1497] _Ib._

[1498] _Annals_, 11th Cong. 3d Sess. 415.

[1499] _Annals_, 12th Cong. 2d Sess. 856-59.

[1500] _Annals_, 12th Cong. 2d Sess. 860.

[1501] _Annals_, 13th Cong. 2d Sess. 1697.

[1502] _Ib._ 1840-42.

[1503] _Annals_, 13th Cong. 2d Sess. 1848.

[1504] _Ib._ 1850.

[1505] _Ib._ 1855.

[1506] _Ib._ 1858-59.

[1507] _Ib._ 1873-75.

[1508] _Annals_, 13th Cong. 2d Sess. 1925; see also Sess. I, chap. 39,
March 31, 1814, _U.S. Statutes at Large_, III, 117.

[1509] Daniel to Ezekiel Webster, March 28, 1814, _Private
Correspondence of Daniel Webster_: Webster, 244.


END OF VOLUME III




APPENDIX




APPENDIX A

THE PARAGRAPH OMITTED FROM THE FINAL DRAFT OF JEFFERSON'S MESSAGE TO
CONGRESS, DECEMBER 8, 1801[1510]


Applications from different persons suffering prosecution under the act
usually called the Sedition act, claimed my early attention to that
instrument. our country has thought proper to distribute the powers of
it's government among three equal & independent authorities,
constituting each a check on one or both of the others, in all attempts
to impair it's constitution. to make each an effectual check, it must
have a right in cases which arise within the line of it's proper
functions, where, equally with the others, it acts in the last resort &
without appeal, to decide on the validity of an act according to it's
own judgment, & uncontrouled by the opinions of any other department. we
have accordingly, in more than one instance, seen the opinions of
different departments in opposition to each other, & no ill ensue. the
constitution moreover, as a further security for itself, against
violation even by a concurrence of all the departments, has provided for
it's own reintegration by a change of the persons exercising the
functions of those department. Succeeding functionaries have the same
right to judge of the conformity or non-conformity of an act with the
constitution, as their predecessors who past it. for if it be against
that instrument it is a perpetual nullity. uniform decisions indeed,
sanctioned by successive functionaries, by the public voice, and by
repeated elections would so strengthen a construction as to render
highly responsible a departure from it. On my accession to the
administration, reclamations against the Sedition act were laid before
me by individual citizens, claiming the protection of the constitution
against the Sedition act. called on by the position in which the nation
had placed me, to exercise in their behalf my free & independent
judgment, I took the act into consideration, compared it with the
constitution, viewed it under every aspect of which I thought it
susceptible, and gave to it all the attention which the magnitude of the
case demanded. on mature deliberation, in the presence of the nation,
and under the tie of the solemn oath which binds me to them & to my
duty, I do declare that I hold that act to be in palpable & unqualified
contradiction to the constitution. considering it then as a nullity, I
have relieved from oppression under it those of my fellow-citizens who
were within the reach of the functions confided to me. in recalling our
footsteps within the limits of the Constitution, I have been actuated by
a zealous devotion to that instrument. it is the ligament which binds us
into one nation. It is, to the national government, the law of it's
existence, with which it began, and with which it is to end. infractions
of it may sometimes be committed from inadvertence, sometimes from the
panic, or passions of a moment. to correct these with good faith, as
soon as discovered, will be an assurance to the states that, far from
meaning to impair that sacred charter of it's authorities, the General
government views it as the principle of it's own life.[1511]


FOOTNOTES:

[1510] See 51-53 of this volume.

[1511] Jefferson MSS. Lib. Cong.




APPENDIX B

LETTER OF JOHN TAYLOR "OF CAROLINE" TO JOHN BRECKENRIDGE CONTAINING
ARGUMENTS FOR THE REPEAL OF THE FEDERALIST NATIONAL JUDICIARY ACT OF
1801[1512]


                                VIRGINIA--CAROLINE--Dec^r 22^{d.} 1801

DEAR SIR

An absence from home, when your letter arrived, has been the cause which
delayed this answer.

I confess that I have not abstracted myself from the political world,
but I must at the same time acknowledge, that this kind of world, of
which I am a member, is quite distinct from that in which your country
has placed you. Mine is a sort of metaphysical world, over which the
plastick power of the imagination is unlimited--yours, being only
physical, cannot be modulated by fancy. The ways of mine are smooth &
soft; of yours, rugged & thorny. And a most prosperous traveller into
the political world which I inhabit, generally becomes unfortunate if he
wanders into the region of which you are now a resident. Yet, as a
solicitation for the continuance of your correspondence, I will venture
upon a short excursion out of my own atmosphere, in relation to the
subject you state.

By way of bringing the point into plain view, I will suppose some cases.
Suppose a congress and president should conspire to erect five times as
many courts & judges, as were made by the last law, meerely for the sake
of giving salaries to themselves or their friends, and should annex to
each office, a salary of 100,000 dollars. Or suppose a president in
order to reward his counsel on an impeachment, and the members of the
senate who voted for his acquittal, had used his influence with the
legislature to erect useless tribunals, paid by him in fees or bribes.
Or, lastly, suppose a long list of courts and judges to be established,
without any ill intention, but meerly from want of intellect in the
legislature, which from experience are found to be useless, expensive
and unpopular. Are all these evils originating either in fraud or error,
remediless under the principles of your constitution?

The first question is, whether the _office_ thus established, is to
continue.

The second, whether the officer is to continue, after the office is
abolished, as being unnecessary.

Congress are empowered "from _time to time_ to ordain & establish
inferior courts."

The law for establishing the present inferior courts, is a legislative
construction, affirming that under this clause, congress may _abolish_
as well as create these _judicial offices_; because it does expressly
_abolish_ the then existing inferior courts, for the purpose of making
way for the present.

It is probable that this construction is correct, but it is equally
pertinent to our object, whether it is or not. If it is, then the
present inferior courts may be abolished, as constitutionally as the
last; if it is not, then the law for abolishing the former courts, and
establishing the present, was unconstitutional, and being so, is
undoubtedly repealable.

Thus the only ground which the present inferior courts can take, is,
that congress may from time to time, regulate, create or abolish such
courts, as the public interest may dictate, because such is the very
tenure under which they exist.

The second question is, whether the officer is to continue after the
office is abolished, as being useless or pernicious.

The constitution declares "that the judge shall hold his _office_ during
good behavior." Could it mean, that he should hold this _office_ after
it was _abolished_? Could it mean that his tenure should be limited by
behaving well in an office, which did not exist?

It must either have intended these absurdities, or admit of a
construction which will avoid them. This construction obviously is, that
the officer should hold that which he might hold, namely, an existing
office, so long as he did that which he might do, namely, his duty in
that office; and not that he should hold an office, which did not exist,
or perform duties not sanctioned by law. If therefore congress can
abolish the courts, as they did by the last law, the officer dies with
his office, unless you allow the constitution to intend impossibilities
as well as absurdities. A construction bottomed upon either, overthrows
the benefits of language and intellect.

The article of the constitution under consideration closes with an idea,
which strongly supports my construction.

The salary is to be paid "during their continuance in office." This
limitation of salary is perfectly clear and distinct. It literally
excludes the idea of paying a salary, when the officer is not in office;
and it is undeniably certain, that he cannot be in office, when there is
no office. There must have been some other mode by which the officer
should cease to be in office, than that of _bad behaviour_, because, if
this had not been the case, the constitution would have directed "that
the judges should hold their offices _and salaries_ during good
behaviour," instead of directing "that they should" hold the salaries
during _their continuance_ in office. This could only be an abolition of
the office itself, by which the salary would cease with the office, tho'
the judge might have conducted himself unexceptionably.

This construction certainly coincides with the public opinion, and the
principles of the constitution. By neither is the idea for a moment
tolerated, of maintaining burthensome sinecure offices, to enrich
unfruitful individuals.

Nor is it incompatible with the "good behaviour" tenure, when its origin
is considered. It was invented in England, to counteract the influence
of the crown over the judges, and we have rushed into the principle with
such precipitancy, in imitation of this our general prototype, as to
have outstript monarchists, in our efforts to establish a judicial
oligarchy; their judges being removable by a joint vote of Lords &
commons, and ours by no similar or easy process.

The tenure however is evidently bottomed upon the idea of securing the
honesty of Judges, whilst exercising the office, and not upon that of
sustaining useless or pernicious offices, for the sake of Judges. The
regulation of offices in England, and indeed of inferior offices in most
or all countries, depends upon the legislature; it is a part of the
detail of the government, which necessarily devolves upon it, and is
beyond the foresight of a constitution, because it depends on variable
circumstances. And in England, a regulation of the courts of justice,
was never supposed to be a violation of the "good behaviour" tenure.

If this principle should disable congress from erecting tribunals which
temporary circumstances might require, without entailing them upon the
society after these circumstances by ceasing, had converted them in
grievances, it would be used in a mode, contemplated neither in its
original or duplicate.

Whether courts are erected by regard to the administration of justice,
or with the purpose of rewarding a meritorious faction, the legislature
may certainly abolish them without infringing the constitution,
whenever they are not required by the administration of justice, or the
merit of the faction is exploded, and their claim to reward disallowed.

With respect to going into the judiciary system farther at present, the
length of this trespass forbids it, and perhaps all ideas tending
towards the revision of our constitution would be superfluous, as I fear
it is an object not now to be attained. All my hopes upon this question
rest I confess with Mr: Jefferson, and yet I know not how far he leans
towards the revision. But he will see & the people will feel, that his
administration bears a distinct character, from that of his predecessor,
and of course discover this shocking truth, that the nature of our
government depends upon the complection of the president, and not upon
the principles of the constitution. He will not leave historians to say
"this was a good president, but like a good Roman Emperor he left the
principles of the government unreformed, so that his country remained
exposed to eternal repetitions of those oppressions after his death,
which he had himself felt and healed during his life."

And yet my hopes are abated by some essays signed "Solon" published at
Washington, and recommending amendments to the constitution. They are
elegantly written, but meerly skim along the surface of the subject,
without touching a radical idea. They seem to be suggested by the
pernicious opinion, that the administration only has been chargeable
with the defectiveness of our operating government heretofore. Who is
the author of these pieces?

Nothing can exceed our exultation on account of the president's message,
and the countenance of congress--nothing can exceed the depression of
the monarchists. They deprecate political happiness--we hope for the
president's aid to place it on a rock before he dies.

It would have given me great pleasure to have seen you here, and I hope
it may be still convenient for you to call. I close with your proposal
to correspond, if the political wanderings of a man, almost in a state
of vegitation, will be accepted for that interesting detail of real
affairs, with which you propose occasionally to treat me. I am, with
great regard, Dr Sir

                                      Yr: mo: ob^{t:} Sev^{t.}
                                                     JOHN TAYLOR[1513]


FOOTNOTES:

[1512] See footnote to 58 of this volume.

[1513] Breckenridge MSS. Lib. Cong.




APPENDIX C

CASES OF WHICH CHIEF JUSTICE MARSHALL MAY HAVE HEARD BEFORE
HE DELIVERED HIS OPINION IN MARBURY _vs._ MADISON.[1514] ALSO
RECENT BOOKS AND ARTICLES ON THE DOCTRINE OF JUDICIAL REVIEW
OF LEGISLATION


Holmes _vs._ Walton (November, 1779, New Jersey), before Chief Justice
David Brearly. (See Austin Scott in American _Historical Review_, IV,
456 _et seq._) If Marshall ever heard of this case, it was only because
Paterson, who was Associate Justice with Marshall when the Supreme Court
decided Marbury _vs._ Madison, was attorney-general in New Jersey at the
time Holmes _vs._ Walton was decided. Both Brearly and William Paterson
were members of the Constitutional Convention of 1787. (See Corwin,
footnote to 41-42.)

Commonwealth _vs._ Caton (November, 1782, 4 Call, 5-21), a noted
Virginia case. (See Tyler, I, 174-75.) The language of the court in this
case is merely _obiter dicta_; but George Wythe and John Blair were on
the Bench, and both of them were afterwards members of the
Constitutional Convention. Blair was appointed by President Washington
as one of the Associate Justices of the Supreme Court.

As to the much-talked-of Rhode Island case of Trevett _vs._ Weeden
(September, 1786; see Arnold: _History of Rhode Island_, II, 525-27,
Varnum's pamphlet, _Case of Trevett vs. Weeden_, and Chandler's
_Criminal Trials_, II, 269-350), it is improbable that Marshall had any
knowledge whatever of it. It arose in 1786 when the country was in
chaos; no account of it appeared in the few newspapers that reached
Virginia, and Varnum's description of the incident--for it can hardly be
called a case--could scarcely have had any circulation outside of New
England. It was referred to in the Constitutional Convention at
Philadelphia in 1787, but the journals of that convention were kept
secret until many years after Marbury _vs._ Madison was decided.

It is unlikely that the recently discussed case of Bayard _vs._
Singleton (North Carolina, November, 1787, 1 Martin, 48-51), ever
reached Marshall's attention except by hearsay.

The second Hayburn case (August, 1792, 2 Dallas, 409; and see _Annals_,
2d Cong. 2d Sess. 1319-22). For a full discussion of this important case
see particularly Professor Max Farrand's analysis in the _American
Historical Review_ (XIII, 283-84), which is the only satisfactory
treatment of it. See also Thayer: _Cases on Constitutional Law_ (1,
footnote to 105).

Kamper _vs._ Hawkins (November, 1793, 1 Va. Ca. 20 _et seq._), a case
which came directly under Marshall's observation.

Van Horne's Lessee _vs._ Dorrance (April, 1795, 2 Dallas, 304), in which
Justice Paterson of the Supreme Court said all that Marshall repeated in
Marbury _vs._ Madison upon the power of the Judiciary to declare
legislation void.

Calder _vs._ Bull (August, 1798, 3 Dallas, 386-401), in which, however,
the Court questioned its power to annul legislation. Cooper _vs._
Telfair (February, 1800, 4 Dallas, 14). These last two cases and the
Hayburn Case had been decided by justices of the Supreme Court.

Whittington _vs._ Polk (Maryland, April, 1802, 1 Harris and Johnson,
236-52). Marshall surely was informed of this case by Chase who, as
Chief Justice of Maryland, decided it. The report, however, was not
published until 1821. (See McLaughlin: _The Courts, the Constitution,
and Parties_, 20-23.) In his opinion in this case Justice Chase employed
precisely the same reasoning used by Marshall in Marbury _vs._ Madison
to show the power of courts to declare invalid legislative acts that
violate the Constitution.

The old Court of Appeals, under the Articles of Confederation, denounced
as unconstitutional the law that assigned circuit duties to the judges
of that appellate tribunal; and this was cited by Thomas Morris of New
York and by John Stanley of South Carolina in the judiciary debate of
1802.[1515]

As to the statement of Chief Justice, later Governor Thomas Hutchinson
of Massachusetts, in 1765, and the ancient British precedents, cited by
Robert Ludlow Fowler in the _American Law Review_ (XXIX, 711-25), it is
positive that Marshall never had an intimation that any such
pronouncements ever had been made.

Neither, in all likelihood, had Marshall known of the highly advertised
case of Rutgers _vs._ Waddington, decided by a New York justice of the
peace in 1784 (see _American Law Review_, XIX, 180), and the case of
Bowman _vs._ Middleton (South Carolina, May, 1792, 1 Bay, 252-55) which
was not printed until 1809. (See McLaughlin, 25-26.) The same may be
said of the North Carolina controversy, State _vs._ ----, decided in
April, 1794 (1 Haywood, 28-40), and of Lindsay _et al vs._ Commissioners
(South Carolina, October, 1796, 2 Bay, 38-62), the report of which was
not printed until 1811.

For a scholarly treatment of the matter from an historical and legally
professional point of view, see _Doctrine of Judicial Review_ by
Professor Edward S. Corwin of the Department of History and Politics,
Princeton University; also _The Courts, the Constitution, and Parties_,
by Professor Andrew C. McLaughlin of the Department of History,
University of Chicago. The discussion by these scholars is thorough. All
cases are critically examined, and they omit only the political exigency
that forced Marshall's opinion in Marbury _vs._ Madison.

The student should also consult the paper of William M. Meigs, "The
Relation of the Judiciary to the Constitution," in the _American Law
Review_ (XIX, 175-203), and that of Frank E. Melvin, "The Judicial
Bulwark of the Constitution," in the _American Political Science Review_
(VIII, 167-203).

Professor Charles A. Beard's _The Supreme Court and the Constitution_
contains trustworthy information not readily accessible elsewhere, as
well as sound comment upon the whole subject.

_Judicial Power and Unconstitutional Legislation_, by Brinton Coxe,
although published in 1893, is still highly valuable. And _Power of
Federal Judiciary over Legislation_, by J. Hampden Dougherty, will be
profitable to the student.

Marbury _vs._ Madison is attacked ably, if petulantly, by Dean Trickett,
"Judicial Nullification of Acts of Congress," in the _North American
Review_ (CLXXXV, 848 _et seq._), and also by James B. McDonough, "The
Alleged Usurpation of Power by the Federal Courts," in the _American Law
Review_ (XLVI, 45-59). An ingenious and comparatively recent dissent
from the theory of judicial supervision of legislation is the argument
of Chief Justice Walter Clark of the Supreme Court of North Carolina,
"Government by Judges." (See Senate Document No. 610, 63d Congress, 2d
Session.)

With regard to the possible effect on American law of foreign assertions
of the supremacy of the Judiciary, particularly that of France, the
Address of James M. Beck of the New York Bar, before the Pennsylvania
Bar Association on June 29, 1915, and reported in the Twenty-first
Annual Report of that Association (222-51), is a careful and exhaustive
study.


FOOTNOTES:

[1514] See 118-19 of this volume.

[1515] See footnote 5 to p. 74 of this volume.




APPENDIX D

TEXT, AS GENERALLY ACCEPTED, OF THE CIPHER LETTER OF AARON BURR TO
JAMES WILKINSON, DATED JULY 29, 1806[1516]


Your letter postmarked thirteenth May, is received. At length I have
obtained funds, and have actually commenced. The Eastern detachments,
from different points and under different pretences, will rendezvous on
the Ohio first of November. Everything internal and external favors our
views. Naval protection of England is secured. Truxtun is going to
Jamaica to arrange with the admiral on that station. It will meet us at
the Mississippi. England, a navy of the United States, are ready to
join, and final orders are given to my friends and followers. It will be
a host of choice spirits. Wilkinson shall be second to Burr only;
Wilkinson shall dictate the rank and promotion of his officers. Burr
will proceed westward first August, never to return. With him goes his
daughter; her husband will follow in October, with a corps of worthies.
Send forthwith an intelligent and confidential friend with whom Burr may
confer; he shall return immediately with further interesting details;
this is essential to concert and harmony of movement. Send a list of all
persons known to Wilkinson west of the mountains who could be useful,
with a note delineating their characters. By your messenger send me four
or five commissions of your officers, which you can borrow under any
pretence you please; they shall be returned faithfully. Already are
orders given to the contractor to forward six months' provisions to
points Wilkinson may name; this shall not be used until the last moment,
and then under proper injunctions. Our object, my dear friend, is
brought to a point so long desired. Burr guarantees the result with his
life and honor, with the lives and honor and the fortunes of hundreds,
the best blood of our country. Burr's plan of operation is to move down
rapidly from the Falls, on the fifteenth of November, with the first
five hundred or a thousand men, in light boats now constructing for that
purpose; to be at Natchez between the fifth and fifteenth of December,
there to meet you; there to determine whether it will be expedient in
the first instance to seize on or pass by Baton Rouge. On receipt of
this send Burr an answer. Draw on Burr for all expenses, etc. The people
of the country to which we are going are prepared to receive us; their
agents, now with Burr, say that if we will protect their religion, and
will not subject them to a foreign Power, that in three weeks all will
be settled. The gods invite us to glory and fortune; it remains to be
seen whether we deserve the boon. The bearer of this goes express to
you. He is a man of inviolable honor and perfect discretion, formed to
execute rather than project, capable of relating facts with fidelity,
and incapable of relating them otherwise; he is thoroughly informed of
the plans and intentions of Burr, and will disclose to you as far as you
require, and no further. He has imbibed a reverence for your character,
and may be embarrassed in your presence; put him at ease, and he will
satisfy you.


FOOTNOTES:

[1516] See 307-09, 352-55, of this volume.




APPENDIX E

EXCERPT FROM SPEECH OF WILLIAM WIRT AT THE TRIAL OF AARON BURR[1517]


Who is Blennerhassett? A native of Ireland, a man of letters, fled from
the storms of his own country to find quiet in ours. His history shows
that war is not the natural element of his mind. If it had been, he
never would have exchanged Ireland for America. So far is an army from
furnishing the society natural and proper to Mr. Blennerhassett's
character, that on his arrival in America, he retired even from the
population of the Atlantic States, and sought quiet and solitude in the
bosom of our Western forests.

But he carried with him taste and science and wealth; and lo, the desert
smiled! Possessing himself of a beautiful island in the Ohio, he rears
upon it a palace and decorates it with every romantic embellishment of
fancy. A shrubbery, that Shenstone might have envied, blooms around him.
Music, that might have charmed Calypso and her nymphs, is his. An
extensive library spreads its treasures before him. A philosophical
apparatus offers to him all the secrets and mysteries of nature. Peace,
tranquillity, and innocence shed their mingled delights around him. And
to crown the enchantment of the scene, a wife, who is said to be lovely
even beyond her sex and graced with every accomplishment that can render
it irresistible, had blessed him with her love and made him the father
of several children. The evidence would convince you, that this is but a
faint picture of the real life.

In the midst of all this peace, this innocent simplicity and this
tranquillity, this feast of the mind, this pure banquet of the heart,
the destroyer comes; he comes to change this paradise into a hell. Yet
the flowers do not wither at his approach. No monitory shuddering
through the bosom of their unfortunate possessor warns him of the ruin
that is coming upon him. A stranger presents himself. Introduced to
their civilities by the high rank which he had lately held in his
country, he soon finds his way to their hearts, by the dignity and
elegance of his demeanor, the light and beauty of his conversation and
the seductive and fascinating power of his address.

The conquest was not difficult. Innocence is ever simple and credulous.
Conscious of no design itself, it suspects none in others. It wears no
guard before its breast. Every door and portal and avenue of the heart
is thrown open, and all who choose it enter. Such was the state of Eden
when the serpent entered its bowers.

The prisoner, in a more engaging form, winding himself into the open and
unpractised heart of the unfortunate Blennerhassett, found but little
difficulty in changing the native character of that heart and the
objects of its affection. By degrees he infuses into it the poison of
his own ambition. He breathes into it the fire of his own courage; a
daring and desperate thirst for glory; an ardour panting for great
enterprises, for all the storm and bustle and hurricane of life.

In a short time the whole man is changed, and every object of his former
delight is relinquished. No more he enjoys the tranquil scene; it has
become flat and insipid to his taste. His books are abandoned. His
retort and crucible are thrown aside. His shrubbery blooms and breathes
its fragrance upon the air in vain; he likes it not. His ear no longer
drinks the rich melody of music; it longs for the trumpet's clangor and
the cannon's roar. Even the prattle of his babes, once so sweet, no
longer affects him; and the angel smile of his wife, which hitherto
touched his bosom with ecstasy so unspeakable, is now unseen and unfelt.

Greater objects have taken possession of his soul. His imagination has
been dazzled by visions of diadems, of stars and garters and titles of
nobility. He has been taught to burn with restless emulation at the
names of great heroes and conquerors. His enchanted island is destined
soon to relapse into a wilderness; and in a few months we find the
beautiful and tender partner of his bosom, whom he lately permitted not
the winds of summer to visit too roughly, we find her shivering at
midnight, on the winter banks of the Ohio and mingling her tears with
the torrents, that froze as they fell.

Yet this unfortunate man, thus deluded from his interest and his
happiness, thus seduced from the paths of innocence and peace, thus
confounded in the toils that were deliberately spread for him and
overwhelmed by the mastering spirit and genius of another--this man,
thus ruined and undone and made to play a subordinate part in this grand
drama of guilt and treason, this man is to be called the principal
offender, while he, by whom he was thus plunged in misery, is
comparatively innocent, a mere accessory! Is this reason? Is it law? Is
it humanity? Sir, neither the human heart nor the human understanding
will bear a perversion so monstrous and absurd! So shocking to the soul!
So revolting to reason! Let Aaron Burr then not shrink from the high
destination which he has courted, and having already ruined
Blennerhassett in fortune, character and happiness forever, let him not
attempt to finish the tragedy by thrusting that ill-fated man between
himself and punishment.[1518]


FOOTNOTES:

[1517] See 495-97 of this volume.

[1518] _Burr Trials_, II, 96-98.




APPENDIX F

ESSENTIAL PART OF MARSHALL'S OPINION ON CONSTRUCTIVE TREASON DELIVERED
AT THE TRIAL OF AARON BURR, ON MONDAY, AUGUST 31, 1807[1519]


The place in which a crime was committed is essential to an indictment,
were it only to shew the jurisdiction of the court. It is also essential
for the purpose of enabling the prisoner to make his defence.... This
necessity is rendered the stronger by the constitutional provision that
the offender "shall be tried in the state and district wherein the crime
shall have been committed," and by the act of congress which requires
that twelve petty jurors at least shall be summoned from the county
where the offence was committed.

A description of the particular manner in which the war was levied seems
also essential to enable the accused to make his defence. The law does
not expect a man to be prepared to defend every act of his life which
may be suddenly and without notice alleged against him. In common
justice the particular fact with which he is charged ought to be stated,
and stated in such a manner as to afford a reasonable certainty of the
nature of the accusation and the circumstances which will be adduced
against him.

       *       *       *       *       *

Treason can only be established by the proof of overt acts; and ...
those overt acts only which are changed in the indictment can be given
in evidence, unless perhaps as corroborative testimony after the overt
acts are proved. That clause in the constitution too which says that in
all criminal prosecutions the accused shall enjoy the right "to be
informed of the nature and cause of the accusation" is considered as
having a direct bearing on this point. It secures to him such
information as will enable him to prepare for his defence.

It seems then to be perfectly clear that it would not be sufficient for
an indictment to allege generally that the accused had levied war
against the United States. The charge must be more particularly
specified by laying what is termed an overt act of levying war....

If it be necessary to specify the charge in the indictment, it would
seem to follow, irresistibly, that the charge must be proved as laid....
Might it be otherwise, the charge of an overt act would be a mischief
instead of an advantage to the accused. It would lead him from the true
cause and nature of the accusation instead of informing him respecting
it.

But it is contended on the part of the prosecution that, although the
accused had never been with the party which assembled at
Blennerhassett's island, and was, at the time, at a great distance, and
in a different state, he was yet legally present, and therefore may
properly be charged in the indictment as being present in fact.

It is therefore necessary to inquire whether in this case the doctrine
of constructive presence can apply.

It is conceived by the court to be possible that a person may be
concerned in a treasonable conspiracy and yet be legally, as well as
actually absent while some one act of the treason is perpetrated. If a
rebellion should be so extensive as to spread through every state in the
union, it will scarcely be contended that every individual concerned in
it is legally present at every overt act committed in the course of that
rebellion. It would be a very violent presumption indeed, ... to presume
that even the chief of the rebel army was legally present at every such
overt act.

If the main rebel army, with the chief at its head, should be
prosecuting war at one extremity of our territory, say in
New-Hampshire--if this chief should be there captured and sent to the
other extremity for the purpose of trial--if his indictment instead of
alleging an overt act, which was true in point of fact, should allege
that he had assembled some small party, which in truth he had not seen,
and had levied war by engaging in a skirmish in Georgia at a time when
in reality he was fighting a battle in New-Hampshire--if such evidence
would support such an indictment by the fiction that he was legally
present though really absent, all would ask to what purpose are those
provisions in the constitution, which direct the place of trial and
ordain that the accused shall be informed of the nature and cause of the
accusation?

But that a man may be legally absent, who has counselled or procured a
treasonable act, is proved by all those books which treat upon the
subject; and which concur in declaring that such a person is a principal
traitor, not because he was legally present, but because in treason all
are principals. Yet the indictment, speaking upon general principles,
would charge him according to the truth of the case....

If the conspirator had done nothing which amounted to levying of war,
and if by our constitution the doctrine that an accessory becomes a
principal be not adopted, in consequence of which the conspirator could
not be condemned under an indictment stating the truth of the case, it
would be going very far to say that this defect, if it be termed one,
may be cured by an indictment stating the case untruly.

       *       *       *       *       *

In point of law then, the man, who incites, aids, or procures a
treasonable act, is not merely in consequence of that incitement, aid or
procurement, legally present when that act is committed.

If it do not result, from the nature of the crime, that all who are
concerned in it are legally present at every overt act, then each case
depends upon its own circumstances; and to judge how far the
circumstances of any case can make him legally present, who is in fact
absent, the doctrine of constructive presence must be examined.

       *       *       *       *       *

The whole treason laid in this indictment is the levying of war in
Blennerhassett's island; and the whole question to which the inquiry of
the court is now directed is whether the prisoner was legally present at
that fact.

I say this is the whole question; because the prisoner can only be
convicted on the overt act laid in the indictment. With respect to this
prosecution, it is as if no other overt act existed.

If other overt acts can be inquired into, it is for the sole purpose of
proving the particular fact charged. It is as evidence of the crime
consisting of this particular fact, not as establishing the general
crime by a distinct fact.

The counsel for the prosecution have charged those engaged in the
defence with considering the overt act as the treason, whereas it ought
to be considered solely as the evidence of the treason; but the counsel
for the prosecution seem themselves not to have sufficiently adverted to
this clear principle; that though the overt act may not be itself the
treason, it is the sole act of that treason which can produce
conviction. It is the sole point in issue between the parties. And the
only division of that point, if the expression be allowed, which the
court is now examining, is the constructive presence of the prisoner at
the fact charged....

Had the prisoner set out with the party from Beaver for Blennerhassett's
island, or perhaps had he set out for that place, though not from
Beaver, and had arrived in the island, he would have been present at the
fact. Had he not arrived in the island, but had taken a position near
enough to coöperate with those on the island, to assist them in any act
of hostility, or to aid them if attacked, the question whether he was
constructively present would be a question compounded of law and fact,
which would be decided by the jury, with the aid of the court, so far as
respected the law. In this case the accused would have been of the
particular party assembled on the island, and would have been associated
with them in the particular act of levying war said to have been
committed on the island.

But if he was not with the party at any time before they reached the
island--if he did not join them there, or intend to join them there--if
his personal coöperation in the general plan was to be afforded
elsewhere, at a great distance, in a different state--if the overt acts
of treason to be performed by him were to be distinct overt acts--then
he was not of the particular party assembled at Blennerhassett's island,
and was not constructively present, aiding and assisting in the
particular act which was there committed.

The testimony on this point, so far as it has been delivered, is not
equivocal. There is not only no evidence that the accused was of the
particular party which assembled on Blennerhassett's island; but the
whole evidence shows he was not of that party.

In felony then, admitting the crime to have been completed on the
island, and to have been advised, procured, or commanded by the accused,
he would have been incontestably an accessory and not a principal.

But in treason, it is said, the law is otherwise, because the theatre of
action is more extensive.

The reasoning applies in England as strongly as in the United States.
While in '15 and '45 the family of Stuart sought to regain the crown
they had forfeited, the struggle was for the whole kingdom; yet no man
was ever considered as legally present at one place, when actually at
another; or as aiding in one transaction, while actually employed in
another.

With the perfect knowledge that the whole nation may be the theatre of
action, the English books unite in declaring that he, who counsels,
procures or aids treason, is guilty accessorially and solely in virtue
of the common law principle, that what will make a man an accessory in
felony makes him a principal in treason. So far from considering a man
as constructively present at every overt act of the general treason in
which he may have been concerned, the whole doctrine of the books limits
the proof against him to those particular overt acts of levying war with
which he is charged.

What would be the effect of a different doctrine? Clearly that which has
been stated. If a person levying war in Kentucky, may be said to be
constructively present and assembled with a party carrying on war in
Virginia at a great distance from him, then he is present at every overt
act performed anywhere. He may be tried in any state on the continent,
where any overt act has been committed. He may be proved to be guilty of
an overt act laid in the indictment in which he had no personal
participation, by proving that he advised it, or that he committed other
acts.

This is, perhaps, too extravagant to be in terms maintained. Certainly
it cannot be supported by the doctrines of the English law.

       *       *       *       *       *

In conformity with principle and with authority then, the prisoner at
the bar was neither legally nor actually present at Blennerhassett's
island; and the court is strongly inclined to the opinion that without
proving an actual or legal presence by two witnesses, the overt act laid
in this indictment cannot be proved.

But this opinion is controverted on two grounds.

The first is, that the indictment does not charge the prisoner to have
been present.

The second, that although he was absent, yet if he caused the
assemblage, he may be indicted as being present, and convicted on
evidence that he caused the treasonable act.

The first position is to be decided by the indictment itself.... The
court understands it to be directly charged that the prisoner did
assemble with the multitude and did march with them.... The charges of
this special indictment therefore must be proved as laid, and no
evidence which proves the crime in a form substantially different can be
received....

But suppose the law to be as is contended by the counsel for the United
States. Suppose an indictment, charging an individual with personally
assembling among others and thus levying war, may be satisfied with the
proof that he caused the assemblage. What effect will this law have upon
this case?

The guilt of the accused, if there be any guilt, does not consist in the
assemblage; for he was not a member of it. The simple fact of assemblage
no more affects one absent man than another.

His guilt then consists in procuring the assemblage, and upon this fact
depends his criminality. The proof relative to the character of an
assemblage must be the same whether a man be present or absent. In
general, to charge any individual with the guilt of an assemblage, the
fact of his presence must be proved: it constitutes an essential part of
the overt act.

If then the procurement be substituted in the place of presence, does it
not also constitute an essential part of the overt act? must it not also
be proved? must it not be proved in the same manner that presence must
be proved?

If in one case the presence of the individual make the guilt of the
assemblage his guilt, and in the other case the procurement by the
individual make the guilt of the assemblage his guilt, then presence and
procurement are equally component parts of the overt act, and equally
require two witnesses.

Collateral points may, say the books, be proved according to the course
of the common law; but is this a collateral point? Is the fact, without
which the accused does not participate in the guilt of the assemblage if
it were guilty, a collateral point? This cannot be.

The presence of the party, where presence is necessary, being a part of
the overt act must be positively proved by two witnesses. No presumptive
evidence, no facts from which presence may be conjectured or inferred
will satisfy the constitution and the law.

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 connected or inferred, can satisfy the constitution 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.

Neither, where procurement supplies the want of presence, is the mind to
be conducted to the conclusion that the accused procured the assembly,
by a train of conjectures of inferences or of reasoning; the fact itself
must be proved by two witnesses, and must have been committed within the
district.

If it be said that the advising or procurement of treason is a secret
transaction, which can scarcely ever be proved in the manner required by
this opinion, the answer which will readily suggest itself is, that the
difficulty of proving a fact will not justify conviction without proof.
Certainly it will not justify conviction without a direct and positive
witness in a case where the constitution requires two.

The more correct inference from this circumstance would seem to be, that
the advising of the fact is not within the constitutional definition of
the crime. To advise or procure a treason is in the nature of conspiring
or plotting treason, which is not treason in itself....

The 8th amendment to the constitution has been pressed with great
force.... The accused cannot be said to be "informed of the nature and
cause of the accusation" unless the indictment give him that notice
which may reasonably suggest to him the point on which the accusations
turns [_sic_], so that he may know the course to be pursued in his
defence.

It is also well worthy of consideration that this doctrine, so far as it
respects treason, is entirely supported by the operation of the common
law, which is said to convert the accessory before the fact into the
principal, and to make the act of the principal his act. The accessory
before the fact is not said to have levied war. He is not said to be
guilty under the statute, but the common law attaches to him the guilt
of that fact which he has advised or procured; and, as contended, makes
it his act.

This is the operation of the common law not the operation of the
statute. It is an operation then which can only be performed where the
common law exists to perform: it is the creature of the common law, and
the creature presupposes its creator. To decide then that this doctrine
is applicable to the United States would seem to imply the decision that
the United States, as a nation, have a common law which creates and
defines the punishment of crimes accessorial in their nature. It would
imply the further decision that these accessorial crimes are not in the
case of treason excluded by the definition of treason given in the
constitution....

I have said that this doctrine cannot apply to the United States without
implying those decisions respecting the common law which I have stated;
because, should it be true as is contended that the constitutional
definition of treason comprehends him who advises or procures an
assemblage that levies war, it would not follow that such adviser or
procurer might be charged as having been present at the assemblage.

If the adviser or procurer be within the definition of levying war, and
independent of the agency of the common law do actually levy war, then
the advisement of procurement is an overt act of levying war. If it be
the overt action which he is to be convicted, then it must be charged in
the indictment; for he can only be convicted on proof of the overt acts
which are charged.

To render this distinction more intelligible let it be recollected, that
although it should be conceded that since the statutes of William and
Mary he who advises or procures a treason may, in England, be charged as
having committed that treason by virtue of the common law operation,
which is said so far as respects the indictment to unite the accessorial
to the principal offence and permit them to be charged as one, yet it
can never be conceded that he who commits one overt act under the
statute of Edward can be charged and convicted on proof of another overt
act.

If then procurement be an overt act of treason under the constitution,
no man can be convicted for the procurement under an indictment charging
him with actually assembling, whatever may be the doctrine of the common
law in the case of an accessorial offender.[1520]


FOOTNOTES:

[1519] See _supra_, chap. IX.

[1520] _Burr Trials_, II, 424-38.




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Thomas Jefferson and Alexander Hamilton. Richmond [Indiana]. 1902.
(Jenkinson.)

JOHNSON, ALLEN. Union and Democracy. Boston. 1915.

JOHNSON, WILLIAM. Sketches of the Life and Correspondence of Nathanael
Greene. 2 vols. Charleston. 1822.

JOHNSTON, HENRY PHELPS, _editor_. _See_ Jay, John.

JONES, CHARLES COLCOCK, _and_ DUTCHER, SALEM. Memorial History of
Augusta, Georgia. Syracuse. 1890.


KENNEDY, JOHN PENDLETON. Memoirs of the Life of William Wirt. 2 vols.
Philadelphia. 1849. (Kennedy.)

KING, RUFUS. Life and Correspondence, comprising his Letters, Private
and Official, his Public Documents and his Speeches. Edited by Charles
Ray King. 6 vols. New York. 1894-1900. [Letterpress edition.] (King.)

KNIGHT, LUCIAN LAMAR. Georgia's Landmarks, Memorials and Legends. 2
vols. Atlanta. 1913-14.


LA ROCHEFOUCAULD-LIANCOURT, FRANÇOIS ALEXANDRE FRÉDÉRIC, DUC DE. Travels
through the United States of North America. 4 vols. London. 1800. (La
Rochefoucauld-Liancourt.)

LEWIS, WILLIAM DRAPER, _editor_. Great American Lawyers: A History of
the Legal Profession in America. 8 vols. Philadelphia. 1907-09. (_Great
American Lawyers_: Lewis.)

_Literary Magazine and American Register._ Vol. II, April to December,
inclusive, 1804. Philadelphia.

LODGE, HENRY CABOT. Alexander Hamilton. Boston. 1882. [American
Statesmen series.]

---- Life and Letters of George Cabot. Boston. 1877. (Lodge: _Cabot_.)

LODGE, HENRY CABOT, _editor_. _See_ Federalist.


MCCALEB, WALTER FLAVIUS. Aaron Burr Conspiracy. New York. 1903.
(McCaleb.)

MCHENRY, JAMES. _See_ Steiner, Bernard Christian.

MCLAUGHLIN, ANDREW CUNNINGHAM. Courts, the Constitution and Parties.
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MACLAY, SAMUEL. Journal. Annotated by John Franklin Meginness.
Williamsport. 1887. (_Maclay's Journal._)

MCMASTER, JOHN BACH. History of the People of the United States from the
Revolution to the Civil War. 8 vols. New York. 1883-1914. (McMaster:
_U.S._)

---- Life and Times of Stephen Girard, Merchant and Mariner. 2 vols.
Philadelphia and London. 1918.

MACON, NATHANIEL. _See_ Dodd, William Edward.

MCREE, GRIFFITH JOHN, _editor_. _See_ Iredell, James.

MANUSCRIPTS:

  Breckenridge, John. Library of Congress.

  Dreer, Ferdinand Julius. Pennsylvania Historical Society.

  Etting, Frank Marx. Pennsylvania Historical Society.

  Hopkinson, Joseph. Possession of Edward P. Hopkinson, Philadelphia.

  Jefferson, Thomas. Library of Congress.

  Kent, James. Library of Congress.

  Letters in Relation to the Burr Conspiracy. Library of Congress.
      (Letters in Relation.)

  Letters of the Corresponding Secretary. (Marshall to John Eliot.)
      Massachusetts Historical Society.

  Miscellaneous. New York Public Library.

  Peters, Richard. Pennsylvania Historical Society.

  Pickering, Timothy. Massachusetts Historical Society.

  Plumer, William. Library of Congress. [The Plumer Papers are
      listed in several divisions, as "Congress," "Diary,"
      "Journal," "Letters," "Register," and "Repository."]

  Records of the United States Circuit Court, Boston, Mass.

  Records of the United States Circuit Court, Richmond, Va.

  Wilkinson, James. Chicago Historical Society.

MARSHALL FAMILY. _See_ Paxton, William McClung.

MARSHALL, JOHN. Life of George Washington. [1st edition.] 5 vols.
Philadelphia. 1805-07. (Marshall, 1st ed.)

---- Same. [2d edition.] 2 vols. Philadelphia. 1840. (Marshall, 2d ed.)

---- Same. [School edition.] Philadelphia. 1838. (Marshall, school ed.)

  _And see_ Beveridge, Albert Jeremiah; Dillon, John Forrest;
      Paxton, William McClung.

MARTIN, FRANÇOIS XAVIER. Notes of a few decisions in the Superior Courts
of the State of North-Carolina, and in the Circuit Court of the U[nited]
States, for North-Carolina District. Newbern. 1797. (Martin.)

MARTINEAU, HARRIET. Retrospect of Western Travel. 2 vols. London and New
York. 1838.

_Maryland Historical Society._ Fund-Publications. No. 24, 1887.
Baltimore. (_Md. Hist. Soc. Fund-Pub._)

_Massachusetts Historical Society._ Proceedings. Boston. (_Mass. Hist.
Soc. Proc._)

MASSACHUSETTS. Senate Journal, 1798-99. Vol. XIX. Manuscript volume,
Massachusetts State Library.

MEGINNESS, JOHN FRANKLIN, _annotator_. _See_ Maclay, Samuel. Journal.

_Messages and Papers of the Presidents, 1789-1897._ _See_ Richardson,
James Daniel.

_Monthly Anthology and Boston Review_. Vol. V. 1808. Boston.

MOORE, THOMAS. Poetical Works, collected by himself, with a Memoir. 6
vols. Boston. 1856.

MORDECAI, SAMUEL. Richmond in By-Gone Days, being the Reminiscences of
An Old Citizen. Richmond. 1856. (Mordecai.)

MORISON, JOHN HOPKINS. Life of the Hon. Jeremiah Smith. Boston. 1845.
(Morison: _Smith_.)

MORISON, SAMUEL ELIOT. Life and Letters of Harrison Gray Otis,
Federalist, 1765-1848. 2 vols. Boston. 1913. (Morison: _Otis_.)

MORRIS, GOUVERNEUR. Diary and Letters. Edited by Anne Cary Morris. 2
vols. New York. 1888. (Morris.)

MURPHEY, ARCHIBALD DEBOW. Papers. Edited by William Henry Hoyt.
[Publications of the North Carolina Historical Commission.] 2 vols.
Raleigh. 1914.


_New England Mississippi Land Company._ Memorial of the Agents to
Congress, with a Vindication of their Title at Law annexed. Washington.
1804.

NEWSPAPERS:

  Baltimore, Md.:     _American_, issues of November 4, 5, 6, 1807.

  Boston, Mass.:      _Columbian Centinel_ issues of January 23,
                        February 16, March 27, 30, 1799, February 6,
                        17, April 2, 7, 1802. _Independent Chronicle_,
                        issues of February 11, 14, 18, 25, 1799, May
                        12, July 10, 1800, March 15, April 26, 1802,
                        March 10, June 30, 1803.

                      _J. Russell's Gazette--Commercial and Political_
                        (later known as the _Boston Gazette_ and the
                        _Boston Commercial Gazette_), issue of January
                        28, 1799.

                      _New England Palladium_, issues of March 12, 23,
                        1802.

  Richmond, Va.:      _Enquirer_, issues of April 10, 28, May 8,
                        November 6, 24, December 1, 4, 8, 12, 1807.

  Washington, D.C.:   _Federalist_, issues of February 13, 20, 22,
                        March 3, 1802, January 8, 1805.

_New York Review_. Vols. II and III. 1838. New York.

_New York State Library Bulletin_. Vol. IV, 1900. New York.

_North American Review_. Vol. 46, 1838; Boston. Vol. 185, 1907; New
York.

_North Carolina Booklet_. Vol. XVII, 1917. Raleigh.


_Old Family Letters._ Copied from the Originals for Alexander Biddle.
Series A. Philadelphia. 1892.

OTIS, HARRISON GRAY. _See_ Morison, Samuel Eliot.


PARTON, JAMES. Life and Times of Aaron Burr. New York. 1858. (Parton:
_Burr_.)

---- Life of Andrew Jackson. 3 vols. New York. 1861. (Parton:
_Jackson_.)

---- Life of Thomas Jefferson. Boston. 1874.

PAXTON, WILLIAM MCCLUNG. Marshall Family. Cincinnati. 1885. (Paxton.)

_Pennsylvania Bar Association._ Report of the Twenty-first Annual
Meeting, 1915. Philadelphia.

PETERS, RICHARD, JR. Reports of Cases argued and adjudged in the Supreme
Court of the United States, January term, 1828. Vol. I. Philadelphia.
1828. (Peters.)

PICKERING, TIMOTHY. Review of the Correspondence between the Hon. John
Adams and the late William Cunningham, Esq., beginning in 1803 and
ending in 1812. Salem. 1824.

PICKETT, ALBERT JAMES. History of Alabama, and incidentally of Georgia
and Mississippi, from the earliest period. 2 vols. Charleston. 1851.
(Pickett.)

PLUMER, WILLIAM. Life. Begun by William Plumer, Jr., completed and
edited, with a sketch of the author's life, by Andrew Preston Peabody.
Boston. 1857. (Plumer.)

PRENTISS, CHARLES, _editor_. _See_ Eaton, William. Life.

PRIEST, WILLIAM. Travels in the United States of America, 1793-97.
London. 1802.


QUINCY, EDMUND. Life of Josiah Quincy of Massachusetts. Boston. 1867.
(Quincy.)


RAMSEY, JAMES GATTYS MCGREGOR. Annals of Tennessee to the End of the
Eighteenth Century. Charleston. 1853.

RANDALL, HENRY STEPHENS. Life of Thomas Jefferson. 3 vols. New York.
1858. (Randall.)

RANDOLPH, JOHN. Adams, Henry; Garland, Hugh Alfred.

RANDOLPH, THOMAS JEFFERSON, _editor_. _See_ Jefferson, Thomas.

_Records of the Federal Convention of 1787._ Edited by Max Farrand. 3
vols. New Haven. 1911. (_Records Fed. Conv._: Farrand.)

RICHARDSON, JAMES DANIEL, _compiler_. A Compilation of Messages and
Papers of the Presidents, 1789-1897. 10 vols. Washington. 1896-99.
(Richardson.)

RITCHIE, THOMAS. _See_ Ambler, Charles Henry.

ROBERTSON, DAVID, _reporter_. _See_ Burr, Aaron. Trials.


SAFFORD, WILLIAM HARRISON, _editor_. _See_ Blennerhassett Papers.

SCOTT, LIEUT.-GENERAL [WINFIELD]. Memoirs. Written by Himself. 2 vols.
New York. 1864.

SEMPLE, ROBERT BAYLOR. History of the Rise and Progress of the Baptists
in Virginia. Richmond. 1810.

SHELTON, WILLIAM HENRY. Jumel Mansion, being a Full History of the House
on Harlem Heights built by Roger Morris before the Revolution, together
with some Account of its more Notable Occupants. Boston. 1916.

SINGLETON, ESTHER. Story of the White House. 2 vols. New York. 1907.

SMITH, GEORGE GILLMAN. Story of Georgia and the Georgia People, 1732 to
1800. Macon. 1900. (Smith.)

SMITH, JEREMIAH. _See_ Morison, John Hopkins.

SMITH, MRS. SAMUEL HARRISON. _See_ Hunt, Gaillard.

SMITH, WILLIAM STEUBEN, _and_ OGDEN, SAMUEL GOUVERNEUR. Trials for
Misdemeanors. Reported by Thomas Lloyd, stenographer. New York. 1807.
(_Trials of Smith and Ogden._)

_South Carolina Historical and Genealogical Magazine._ Vol. VII, 1906.
Charleston.

_Southwestern Historical Quarterly._ Vol. XVII, 1909. Austin.
(_Southwestern Hist. Quarterly._)

SPARKS, JARED, _editor_. _See_ Washington, George.

_State of Facts, showing the Right of Certain Companies to the Lands
lately purchased by them from the State of Georgia._ United States.
1795.

_State Trials._ Complete Collection of State Trials and Proceedings for
High-Treason, and other Crimes and Misdemeanors; from the Reign of King
Richard II. to the End of the Reign of King George I. [1377-1727.] 6
vols. London. 1730. (_State Trials Richard II. to George I._)

_Statutes at Large._ _See_ United States Statutes.

STEINER, BERNARD CHRISTIAN. Life and Correspondence of James McHenry.
Cleveland. 1907.

STEVENS, THADDEUS. _See_ Woodburn, James Albert.

STEVENS, WILLIAM BACON. History of Georgia from its First Discovery by
Europeans to the Adoption of the Present Constitution in 1798. 2 vols.
Vol. I, New York, 1847. Vol. II, Philadelphia, 1859. (Stevens.)

STORY, JOSEPH. Life and Letters. Edited by William Wetmore Story. 2
vols. Boston. 1851. (Story.)

SUPREME COURT. _See_ United States Supreme Court.


THAYER, JAMES BRADLEY. Cases on Constitutional Law. 4 vols. Cambridge.
1894-95.

---- John Marshall. Boston. 1904. [Riverside Biographical Series.]

TROUP, GEORGE MICHAEL. _See_ Harden, Edward Jenkins.

TUCKER, GEORGE. Life of Thomas Jefferson. 2 vols. Philadelphia. 1837.
(Tucker.)

TYLER, LYON GARDINER. Letters and Times of the Tylers. 3 vols. Richmond.
1884-96. (Tyler.)


UNITED STATES CONGRESS. Debates and Proceedings, First Congress, First
Session, March 3, 1789, to Eighteenth Congress, First Session, May 27,
1824. [Known as the Annals of Congress.] 42 vols. Washington. 1834-56.
(_Annals._)

---- Documents, Legislative and Executive. _See_ American State Papers.

---- History of the Last Session of Congress, which commenced on the
seventh of December, 1801. [Taken from the _National Intelligencer_.]
Washington. 1802. (_Hist. Last Sess. Cong, which commenced 7th Dec.
1801._)

UNITED STATES SENATE. Document No. 610. 63d Congress, 2d Session.
Washington. 1914.

---- Journal of the Executive Proceedings of the Senate of the United
States of America, from the Commencement of the First to the Termination
of the Nineteenth Congress. 3 vols. Washington. 1828. (_Journal Exec.
Proc. Senate._)

_United States Statutes at Large._ Vols. I, II, III. Boston. 1850.
(_U.S. Statutes at Large._)

UNITED STATES SUPREME COURT. Cases adjudged in the Supreme Court at
October term, 1883. Reported by John Chandler Bancroft Davis. Vol. III.
New York and Albany. 1884.

  _See also_ Cranch, William; Dallas, Alexander James; Howard,
      Benjamin Chew; Peters, Richard, Jr.; Wallace, John William.


       *       *       *       *       *


Transcriber's Notes:

1. Passages in italics are surrounded by _underscores_.

2. Obvious errors in spelling and punctuation have been corrected.

3. Footnotes have been renumbered and moved from the page end to the
end of their respective chapters.

4. Images have been moved from the middle of a paragraph to the closest
paragraph break.

5. Certain words use an oe ligature in the original.

6. Carat character (^) followed by a single letter or a set of letters
in curly brackets is indicative of subscript in the original book.