The Life of John Marshall Volume III Part 61

"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 crus.h.i.+ng 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 confreres 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 a.s.sailed, Adams was cast into black depression: "It is indeed a fiery ordeal I have to go through. G.o.d 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 inst.i.tutions, 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 Was.h.i.+ngton, 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 Const.i.tution of the American Nation.

FOOTNOTES:

[1153] _Blennerha.s.sett Papers_: Safford, 298.

Blennerha.s.sett 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 _Blennerha.s.sett 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 x.x.x. 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." (_Blennerha.s.sett 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 wis.h.i.+ng 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 a.s.sociate Justices of the Supreme Court, June 29, 1807, as quoted by Horace Gray, a.s.sociate Justice of the Supreme Court, in Dillon, I, 72.

[1190] Parton: _Burr_, 483.

[1191] _Burr Trials_, I, 369-70.