The Life of John Marshall Volume III Part 53

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 subst.i.tuted 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 Was.h.i.+ta 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 Blennerha.s.sett of Virginia. The indictment for treason charged that on December 13, 1806, at Blennerha.s.sett'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 princ.i.p.al culprit, came into court the day after the indictment of Burr and Blennerha.s.sett 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 circ.u.mstances 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 att.i.tude & tone a.s.sumed 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 tec.u.m_. 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 pa.s.sages 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 pa.s.sions 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 s.h.i.+eld 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 mult.i.tude 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] _Blennerha.s.sett Papers_: Safford, 465. Marshall made this avowal to Luther Martin, who personally told Blennerha.s.sett of it.

[1022] Judge Francis M. Finch, in Dillon, I, 402.

"The men who framed that instrument [Const.i.tution] 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 Ma.s.sachusetts 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] _Blennerha.s.sett 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.