John Marshall
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“Against Burr, personally,” he insisted, “I never had one hostile sentiment.”21
As the date approached for Burr’s trial for preparing an invasion of Spanish territory, Jefferson’s attorney general stunned the President by withdrawing from the case. Jefferson himself took charge, turning to Virginia district attorney George Hay to lead the prosecution. The son of a cabinet maker, Hay slipped into the halls of the Virginia dynasty by marrying the daughter of Jefferson’s acolyte James Monroe. With an ambitious eye focused on the attorney general’s office, he complied zealously with every presidential instruction—even submitting a motion to reinstate the treason charge against Burr. In doing so, however, he inadvertently put President Thomas Jefferson on trial alongside Burr.
Although Burr acted as his own attorney, he assembled a team of skilled lawyers to help him, including the formidable Luther Martin, a renowned Maryland attorney who had walked out of the Constitutional Convention. Martin had fought ratification in his state with oratory that compared well with that of another foe of ratification, Patrick Henry of Virginia.
Noting that the Constitution required two witnesses to the same overt act as proof of treason, one of Burr’s lawyers asked simply, “Is there even one solitary witness who can depose to an act of overt treason?”
There was none.
Burr then testified in his own defense, saying, “We are told by the President that the people of Ohio were alarmed.
“How were they alarmed?” he asked.
“He [the President] alarmed them,” Burr answered his own question.
“How was he alarmed?” Burr asked. “By Mr. Wilkinson.”
Burr said that grand juries in the West had “honorably discharged” him, with one grand jury actually censuring the government.
“There was no alarm in that part of the country!”22
He had gone west, he told Justice Marshall, for “purely peaceable and agricultural” purposes. “My designs were honorable and would have been useful to the United States.”23
The grand jury, having heard testimony from forty-eight people, charged Aaron Burr—without explanation—of “not having God before his eyes . . . but being moved and seduced by the instigation of the devil . . . with a great multitude of persons . . . did falsely and traitoriously assemble . . . in a warlike and hostile manner, array and dispose themselves against the said United States.” Although somewhat skeptical about the evidence presented, Marshall decided there was enough evidence to hold Burr for trial on the charge of leading an expedition against Spanish territory.24
“I have three rooms in the third story of the penitentiary,” Burr wrote with his usual drollery to his daughter after Marshall remanded him to federal custody. “My jailor is quite a polite and civil man—altogether unlike the idea one would form of a jailer.”
My friends and acquaintances of both sexes are permitted to visit me without interruption, without inquiring their business, and without the presence of a spy. . . . If you come, I can give you a bedroom and parlor on this floor. The bedroom has three large closets. . . . Remember: no agitation, no complaints, no fears or anxieties.25
After three weeks in prison, however, he lost all traces of light hearted ness. “I should never invite anyone, 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.”26
The trial did not begin until mid-August, with the jury hearing more than a dozen prosecution witnesses. None could testify having seen “an act of levying war.”
When Burr demanded to see the documents the President had said would prove Burr’s guilt, the prosecution and Jefferson refused.
“The President,” Martin fumed, “has undertaken to prejudge my client by declaring that ‘of his guilt there can be no doubt.’ He has assumed to himself the knowledge of the Supreme Being . . . to keep back the papers which are wanted for this trial, where life itself is at stake.”27
Infuriated by Martin’s attack, the President ordered prosecutors to look into indicting the lawyer as a coconspirator with Burr—“particeps criminis . . . [to] put down this unprincipled and impudent federal bulldog and add another proof that the most clamorous of Burr’s defenders are all his accomplices.”28 The prosecutors, however, failed to find any evidence against Martin, and the case remained on track, with Burr still demanding that the President release the evidence he claimed would prove the charges against the former vice president.
On June 15, 1807, Chief Justice John Marshall issued another of his many landmark decisions. He began by addressing the issue of withholding evidence:
“The propriety of introducing any paper into a case as testimony must depend on the character of the paper, not the character of the person who holds it,” Marshall declared.
The uniform practice of this country has been to permit any individual who was charged with any crime to prepare for his defense. . . . The genius and character of our laws and usages are friendly, not to condemnation at all events, but to a fair and impartial trial. And they consequently allow to the accused the right of preparing the means to secure such a trial.29
Marshall cited the Sixth Amendment to the Constitution giving the accused in all criminal prosecutions “the right to a speedy and public trial and to compulsory process for obtaining witnesses in his favor.”
“The right given by this article,” the Chief Justice proclaimed, “must be deemed sacred by the court.”30
Having disposed of Burr’s constitutional right to obtain any and all documents relating to his case, Marshall then turned his attention to whether the subpoena to obtain such documents can be directed to the President of the United States.
“In the provisions of the Constitution . . . which give the accused a right to the compulsory process of the court,” Marshall answered his own question, “there is no exception whatever . . . and it would seem that no person could claim an exemption from them.”
When the prosecution retorted by citing the British constitutional principle that “the king can do no wrong,” Marshall was ready:
By the Constitution of the United States, the President . . . may be impeached and removed from office on conviction of high crimes and misdemeanors. By the constitution of Great Britain the crown is hereditary and the monarch can never become a subject. . . . The President is elected from the mass of the people, and on the expiration of the time for which he is elected, he returns to the mass of the people again.31
Marshall conceded that national security might dictate the President’s withholding of some documents, but there was no indication that the papers Burr had requested fell into that category.
To Jefferson and every successor American President, therefore, Chief Justice Marshall proclaimed in United States v. Burr that the President of the United States was then and forever a citizen like every other citizen and as subject to the rule of law.
Jefferson complied and released the letters, and when General Wilkinson took the stand under oath, he admitted that he altered and forged parts of the notorious “cipher letter” to change Burr’s otherwise innocent missive into a blueprint for conspiracy.
Marshal chided the prosecution, saying it had charged Burr with levying war against the United States—an overt act that must be proved by two witnesses.
“It is not proved by a single witness,” Marshall declared, calling the testimony that the jury had heard inadmissible, irrelevant, and “incompetent to prove the overt act itself.”32 If Burr had, indeed, raised an army of 7,000 troops, Marshall asked, “what could veil his army from human sight? An invisible army is not an instrument of war.”33 A few minutes later the jury declared Burr “not proved guilty under this indictment by any evidence submitted to us. We therefore find him not guilty.”34
Having called fifty witnesses, even Hay realized that all evidence pointed overwhelmingly to Burr intending only to settle and develop his lands without intent of bothering anyone in nearby Spanish
territory. Hay asked Marshall to dismiss the jury nolle prosequi—without further charges—but Burr now shot to his feet to protest, demanding a jury verdict. Marshall agreed he could not dismiss the jury without the defendant’s consent. The jury conferred and again ruled Burr not guilty of the original indictment.
Jefferson immediately sent the trial records to Congress, demanding that the House impeach Marshall and write a constitutional amendment that would roll back Marshall’s decisions and sharply circumscribe judicial authority.
“We had supposed we possessed fixed laws to guard us equally against treason and oppression,” Jefferson raged. “But it now appears we have no law but the will of the judge.”35
Jefferson ordered aides and friendly editors to whip up public opinion against the Supreme Court.
“Let the judge be impeached,” demanded the Richmond Enquirer, which called federal judges in general “too independent of the people” and Marshall in particular “a disgrace to the bench of justice.”36
Jefferson’s Republicans in Congress acted to dilute Marshall’s powers by increasing the number of Supreme Court justices to seven to ensure a large enough Republican majority to dispatch Chief Justice John Marshall and his opinions into legal obscurity.
In Baltimore an angry mob responded to editorials condemning Marshall by hanging the Chief Justice in effigy alongside an effigy of Aaron Burr and pledging to march on the Supreme Court if Marshall ever again appeared in Washington.
CHAPTER 14
The Court Must Be Obeyed
AS THE PRESS INTENSIFIED ITS DEMANDS FOR CHIEF JUSTICE MARSHALL’S removal, mobs snaked through the streets of Richmond threatening to hang Aaron Burr. Terrified, not knowing where to go, he found even his oldest, most faithful friends unwilling to risk their own property or lives to help him.
Deeply in debt, fearing death at the hands of Jefferson’s or Wilkinson’s agents, and facing prosecution in six states by Jefferson-appointed district attorneys, Burr obtained passage on a ship bound for England in June 1808 and found both a safe haven and warm friendship at the home of the then-radical philosopher Jeremy Bentham. He busied himself with Bentham’s various projects—abolition of slavery, women’s suffrage, prison reform, and Latin American liberation—and engaged in endless sexual adventures.
Arrested in 1809 and ordered to leave the country for his support of Latin American liberation movements, Burr traveled about Europe, finally settling in Paris, where he pursued any and every opportunity to survive. Among other gainful activities, he translated French works into English by day and sold sexual attentions to wealthy, elderly women at night.
After Jefferson left office Burr decided it was safe to return to America, and he arrived in New York in early 1812—only to learn that his only grandson, ten-year-old Aaron Burr Alston, had just died in Charleston, South Carolina. The boy’s distraught mother, Theodosia—Burr’s only child—boarded a boat to rejoin her father in New York but never arrived. The ship and all its passengers and crew were lost at sea. Burr remained in New York, shunned politics, and practiced law in relative obscurity for the rest of his life.
General James Wilkinson faced court martial for his false testimony at the Burr trial but was found not guilty. He commanded an American force in the War of 1812 but was relieved of his command after two failed campaigns. He went to Mexico in 1821 to claim a Texas land grant from Spanish authorities and died there. Subsequent inquiries revealed his almost-constant ties to treasonous activities during his career as an officer in the American military.
Marshall, meanwhile, had swept his wife into their carriage after the Burr trial and ridden away to the calm and safety of their Oak Hill home in the Blue Ridge Mountains. Terrified by news of the Baltimore mob hanging her husband in effigy, Polly sank into another depression that left her clinging to her husband more than ever, pleading with him not to wander far whenever he set foot near the door.
Jefferson’s efforts to impeach John Marshall and amend the Constitution to weaken the judiciary met with diminishing enthusiasm in Congress. Even Jefferson’s most ardent admirers now recognized his response to the Burr trial as another in his relentless efforts to wreak vengeance on his perceived enemies and expand his personal power. That these efforts had crossed the line into paranoia became clear when he ranted about the Chief Justice having planned in advance “not only to clear Burr but to prevent the evidence from ever going before the world.”1 Even Jefferson’s compliant ally Congressman William Branch Giles turned against the President, conceding that the lack of evidence had sustained “the innocence of the accused.”2
That Jefferson’s obsession with punishing political enemies was clouding his judgment in other presidential matters had become evident even before the trial began, when a barrage of citizen complaints against the President besieged Congress.
In late June 1807, more than a month before the Burr trial had started, a British frigate Leopard sailing in international waters near Norfolk, Virginia, ordered the American frigate Chesapeake to surrender four men the British captain claimed were deserters. When the Chesapeake’s captain refused, the British fired without warning, killing three Americans, wounding eighteen, and carrying off the four alleged deserters. When the American ship limped into port, Americans demanded that the President retaliate.
Caught by surprise by the Chesapeake disaster and obsessed with fears of the illusory Burr conspiracy, the President responded precipitously. In a carelessly conceived—some said irrational—move, Jefferson called on Congress to pass a broad-based embargo act that closed American ports to foreign trade—not just English or French trade, but all foreign trade. The President told Americans to do without imports, become self-sufficient, and rely entirely on American-made goods.
“Our commerce is so valuable to them,” he asserted naively, “that they will be glad to purchase it, when the only price we ask is justice.”3
The Embargo Act proved an instant disaster, with almost no ill effects on British foreign trade and crushing consequences for the American economy. The nation had neither the skilled workers nor the manufacturing facilities to absorb and transform the huge quantities of raw materials it produced each year into manufactured goods—and no domestic market large enough to absorb such finished goods if it could make them. Economic survival depended on exporting raw materials.
Connecticut’s legislature declared the Embargo Act “unconstitutional and despotic” and ordered state officials not to enforce it.4 Connecticut Governor Jonathan Trumbull taunted Jefferson with the President’s own words from the Kentucky Resolution of a decade earlier.
“Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers,” Trumbull mocked the President, “it becomes the duty [of state legislatures] to interpose their protecting shield between the right and liberty of the people and the assumed power of the federal government.”5
Other states followed suit in mass defiance of presidential and federal authority. Across New England a huge smuggling trade emerged, driving prices up uncontrollably as merchants openly defied the American government and engaged in illicit trade with England and her colonies, paying whatever prices smugglers demanded.
In the absence of American vessels on world trade routes, British cargo ships filled the void in international commerce. Canada and South America replaced the United States as Europe’s primary suppliers of lumber, grain, pelts, and other commodities. While Jefferson focused on his insane pursuit of Aaron Burr, American exports plummeted nearly 80 percent from $108 million in 1807 to $22.5 million in 1808, while imports fell nearly 60 percent, from $138 million to less than $57 million. Government revenues from duties dropped from $16 million to a few thousand dollars. The Act marooned 55,000 sailors and left 100,000 other Americans—merchants, craftsmen, laborers, and others who depended on foreign trade—without work or income. American ships trapped in foreign waters when the Embargo Act went into effect fell prey to pirates as well as the British a
nd French navies.
Massachusetts Senator and former Secretary of State Timothy Pickering stopped just short of renewing his earlier call for secession, urging instead a convention of New England states to nullify the embargo.
“My dear sir,” Chief Justice Marshall answered Pickering’s invitation to the convention,
If sound argument and correct reasoning could save our country, it would be saved. Nothing can be more completely demonstrated than the inefficacy of the embargo, yet that demonstration seems to be of no avail. I fear that the same spirit which so tenaciously maintains this measure will impel us to a war with the only power which protects any part of the civilized world from the despotism of that tyrant [Napoléon Bonaparte]. . . . But I abstain from remarks on this question.6
Marshall’s reason for refusing Pickering’s invitation became clear two months later, when he announced the court’s decision voiding Pennsylvania’s nullification of a federal court order as unconstitutional.
The case dated back to the Revolutionary War when Gideon Olmstead and three sailors mutinied aboard a British sloop in 1778 and sailed it toward New Jersey to sell it and its cargo. An armed Commonwealth of Pennsylvania vessel intercepted them and sailed the ship to Philadelphia, where a commonwealth court awarded Olmstead and his friends one-fourth of the proceeds from the sale of the ship and cargo and gave the rest to the state.
Olmstead sued, and in 1779 a federal Continental Prize Court awarded Olmstead all the proceeds. The Pennsylvania legislature passed a law that nullified the Continental Prize Courts award “to protect the just rights of the state . . . from any process whatever issued out of any federal court.”7
Federal Judge Richard Peters held the funds until the Supreme Court could hear the case in 1808. A year later the High Court declared the Pennsylvania legislature’s action to have been an unconstitutional assertion of state sovereignty and ordered Peters to turn the moneys over to Olmstead. In a separate case that followed soon after, a federal district court judge cited United States v. Peters in dismissing a state’s challenge to the Embargo Act, citing the supremacy of federal over state authority.