The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

943

4 Cranch, 131-32.

944

4 Cranch, 132-33.

945

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.

946

4 Cranch, 133-34.

947

4 Cranch, 135.

948

4 Cranch, 136.

949

Feb. 21, 1807, Memoirs, J. Q. A.: Adams, i, 459.

950

Annals, 9th Cong. 2d Sess. 472.

951

Ib. 506.

952

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."

953

Annals, 9th Cong. 2d Sess. 531.

954

Ib. 532-33.

955

Ib. 535.

956

Annals, 9th Cong. 2d Sess. 536.

957

Ib. 537-38.

958

Ib. 589.

959

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.)

960

The boats were very comfortable. They were roofed and had compartments for cooking, eating, and sleeping. They were much like the modern house boat.

961

Bissel to Jackson, Jan. 5, 1807, Annals, 9th Cong. 2d Sess. 1017-18.

962

Murrell to Jackson, Jan. 8, 1807, Annals, 9th Cong. 2d Sess. 1017.

963

Mead to the Secretary of War, Jan. 13, 1807, ib. 1018.

964

Burr had picked up forty men on his voyage down the Mississippi.

965

Mead to the War Department, Jan. 19, 1807, Annals, 9th Cong. 2d Sess. 1019.

966

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.

967

Return of the Mississippi Grand Jury, Feb. 3, reported in the Orleans Gazette, Feb. 20, 1807, as quoted in McCaleb, 272-73.

968

Annals, 10th Cong. 1st Sess. 528-29, 536, 658-61.

969

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.

970

McCaleb, 277.

971

Ib.

972

In that part of the Territory which is now the State of Alabama.

973

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.

974

Pickett: History of Alabama, 218-31.

975

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.)

976

Pickett, 224-25.

977

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.

978

Randolph to Nicholson, March 25, 1807, Adams: Randolph, 220.

979

The warrant was written by Marshall himself. (MS. Archives of the United States Court, Richmond, Va.)

980

Burr Trials, i, 1.

981

Burr Trials, i, 1.

982

The first thing that Burr did upon his arrival at Richmond was to put aside his dirty, tattered clothing and secure decent attire.

983

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.)

984

It was a rule of Burr's life to ignore attacks upon him. (See supra, 280.)

985

Burr Trials, i, 5.

986

Burr Trials, i, 6-8.

987

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.)

988

Burr Trials, i, 11-18.

989

Ib. 19.

990

Burr Trials, i, 20. His "property," however, represented borrowed money.

991

Burr to his daughter, May 15, 1807, Davis, ii, 405-06.

992

Burr to his daughter, May 15, 1807, Davis, ii, 405-06.

993

Giles to Jefferson, April 6, 1807, Anderson, 110. The date is given in Jefferson to Giles, April 20, 1807, Works: Ford, x, 383.

994

Parton: Burr, 455.

995

"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."

996

McCaleb, 325.

997

See infra, 476-77; also vol. iv, chap. i, of this work.

998

See Nicholson to Monroe, April 12, 1807, Adams: Randolph, 216-18. Plumer notes "the rancor of his personal and political animosities." (Plumer, 356.)

999

Jefferson to James Bowdoin, U.S. Minister to Spain, April 2, 1807, Works: Ford, x, 382.

1000

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.

1001

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."

1002

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.

1003

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.)

1004

Jefferson to Giles, April 20, 1807, Works: Ford, x, 383-88.

1005

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.

1006

Jefferson to the Secretary of State, April 14, 1807, Works: Ford, x, 383.

1007

Jenkinson: Aaron Burr, 282-83.

1008

Jefferson to "Bollman," Jan. 25, 1807, Davis, ii, 388.

1009

Bollmann's narrative, Davis, ii, 389.

1010

McCaleb, 331.

1011

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.)

1012

Wilkinson was then en route by sea to testify against Burr before the grand jury.

1013

Mordecai: Richmond in By-Gone Days, 68.

1014

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.

1015

Enquirer, April 10 and 28, 1807.

1016

See vol. i, 201, of this work.

1017

Tobacco chewing and smoking in court-rooms continued in most American communities in the South and West down to a very recent period.

1018

Address of John Tyler on "Richmond and its Memories," Tyler, i, 219.

1019

Irving was twenty-four years old when he reported the Burr trial.

1020

Blennerhassett Papers: Safford, 465. Marshall made this avowal to Luther Martin, who personally told Blennerhassett of it.

1021

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.)

1022

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.

1023

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.)

1024

"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.)

1025

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.

1026

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.

1027

"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.)

1028

Hildreth, iv, 692.

1029

Parton: Burr, 458.

1030

Parton: Jackson, i, 333.

1031

Jackson to Anderson, June 16, 1807, ib. 334.

1032

Ib. 335.

1033

Ib. 334-36.

1034

Parton: Burr, 606-08; see also Parton: Jackson, ii, 258-59, 351-54; and Davis, ii, 433-36.

1035

Address of John Tyler, "Richmond and its Memories," Tyler, i, 219.

1036

Parton: Burr, 459.

1037

Memoirs of Lieut. – General Scott, i, 13.

1038

Memoirs of Lieut. – General Scott, i, 13, 16.

1039

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).

1040

Blennerhassett Papers: Safford, 426.

1041

Parton: Burr, 461.

1042

Burr Trials, i, 31-32.

1043

Ib. 37.

1044

Ib. 38.

1045

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.

1046

Burr Trials, i, 38-39.

1047

Ib. 41-42.

1048

Burr Trials, i, 41-42.

1049

Jefferson to Nicholas, Feb. 28, 1807, Works: Ford, x, 370-71.

1050

Burr Trials, i, 43.

1051

Ib. 44.

1052

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.

1053

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.

1054

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.)

1055

Burr Trials, i, 47-48.

1056

Hay to Jefferson, May 25, 1807, Jefferson MSS. Lib. Cong.

1057

Burr Trials, i, 48-51.

1058

Burr Trials, i, 53-54.

1059

Irving to Paulding, June 22, 1807, Life and Letters of Washington Irving: Irving, i, 145.

1060

Burr Trials, i, 57-58.

1061

Burr Trials, i, 58-76.

1062

"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.)

1063

He was hanged in effigy soon after the trial. (See infra, 539.)

1064

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.)

1065

He had narrowly escaped impeachment (see supra, chap. iv), and during the trial he was openly threatened with that ordeal (see infra, 500).

1066

Burr Trials, i, 79-81.

1067

See supra, 390-91.

1068

Jefferson to Hay, May 26, 1807, Works: Ford, x, footnote to 394-95.

1069

Burr Trials, i, 81-82.

1070

Ib. 82.

1071

Ib. 84-85.

1072

Burr Trials, i, 91.

1073

Ib. 94.

1074

Ib. 95-96.

1075

Burr Trials, i, 492-97.

1076

Burr Trials, i, 509-14.

1077

Burr Trials, i, 97-101.

1078

Ib. 97.

1079

Md. Hist. Soc. Fund-Pub. No. 24, 22.

1080

Blennerhassett Papers: Safford, 468-69.

1081

Burr Trials, i, 101-04.

1082