a speech of about two hours and a half without order, connection or argument, consisting altogether of the most hackneyed commonplaces of popular declamation, mingled with panegyrics and invectives . . . [and] much distortion of face and contortion of body . . . with occasional pauses for recollection and continual complaints about having lost his notes.27
New Hampshire Senator William Plumer agreed, calling the summation “devoid of argument, method or consistency . . . replete with invective and even vulgarity . . . a weak, feeble, and deranged harangue. After he sat down he threw his feet upon the table, distorted his features, and assumed an appearance as disgusting as his harangue.”28
On March 1, 1805, spectators squeezed into every inch of Senate space to hear the verdict. Vice President Burr took firm command of the explosive situation, calling out firmly, “The sergeants-at-arms will face the spectators and seize and commit to prison the first person who makes the smallest noise or disturbance.”
A tomb-like silence filled the hall.
“The secretary will read the first article of impeachment.”
When the secretary’s monotone halted, Burr’s voice boomed:
“Senator Adams of Massachusetts! How say you? Is Samuel Chase the respondent guilty of high crimes and misdemeanors as charged in the article or not?”
“Not guilty!” Adams’s voice rang out.
Other Federalists echoed Adams’s words.
Then the Republicans had their turn—and one, two, then three Republicans shocked Jefferson by also declaring Chase not guilty.
As a body, the US Senate had rudely rejected the President’s attempt to remove a justice of the Supreme Court because of his political views. Even Virginia’s arch-Republican William Branch Giles, a Jefferson intimate, cried out, “Not guilty!”
“It appears that there is not a constitutional majority of votes finding Samuel Chase, Esquire, guilty of any one article,” Vice President Burr announced. “It therefore becomes my duty to declare that Samuel Chase, Esquire, stands acquitted of all articles exhibited by the House of Representatives against him.”29
New Hampshire’s Republican Senator Plumer wrote to his son:
The greatest and most important trial ever held in this nation has terminated justly. The venerable judge whose head bears the frost of seventy winters is honorably acquitted. I never witnessed in any place such a display of learning as the counsel for the accused exhibited. Impeachment is a farce which will not be tried again.30
Despite the loathing that some Senators harbored for Burr, all agreed with Plumer that “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.”31
Massachusetts Senator Samuel Taggart, a Federalist clergyman, agreed:
Burr has displayed much ability, and since the first day, I have seen nothing of partiality. I could almost forgive Burr for any less crime than the blood of Hamilton for his decision, dignity, firmness, and impartiality with which he presided in this trial. He is undoubtedly one of the best presiding officers I ever witnessed.32
Aaron Burr Jr., had, in fact, helped the Senate crush an attempted Jefferson coup d’état. The President had been prepared to remove every justice with opposing political views and put control of the entire federal government—the executive, legislative, and judiciary branches—in the hands of a single political party, as Jacobins had done in France.
The Chase victory represented more than a personal triumph. It was a triumph for the entire Supreme Court and, indeed, for the Constitution. And it was a triumph for Chief Justice John Marshall, who left the Senate chamber after the Chase trial ready to assert himself as the most powerful jurist in the United States—defender of the Constitution and the Union against assault, from whatever the source.
Neither Jefferson’s defeat nor Chase’s victory were all-encompassing, however. Although the judiciary had ensured its independence from abuses of power by both legislative and executive branches, it had not achieved independence from the will of the people. Evidently chastened by his experience, Chase now recognized—with Marshall and the other justices—that although Congress could not arbitrarily remove a justice from the bench, it could impeach him and bring him before the bar of justice in the US Senate for a thorough and humiliating examination of his conduct on the bench.
Justice Chase would serve another six years until his death in 1811. He became a model of decorum, never again uttering “unusual, rude and contemptuous expressions” in court, as he had in the Callender case. Marshall convinced Chase and the other justices that public political statements seldom changed opinions and served only to provoke questions about the objectivity of judicial decisions.
Marshall pointed out that the President and members of Congress were responsible to the people who elected them and, therefore, had a responsibility to speak out on political issues. Members of the Court, however, were responsible to the Constitution—and only to the Constitution—and were duty bound to limit their public expressions to interpretations of that document.
The Chase victory chastened many Republicans as well. An unspoken truce between leaders of the three branches of government produced a prolonged, albeit uneasy calm in the capital. Even President Jefferson seemed to embrace political peace, writing to Marshall the day after the Chase acquittal to ask the Chief Justice to attend the forthcoming presidential inauguration and administer the oath of office for the President’s second term. As Jefferson penned his invitation, the Republican he despised most—Aaron Burr Jr.—stood where Jefferson would take the presidential oath two days later and delivered one of the most moving addresses in US Senate history.
Speaking extemporaneously without notes for about twenty minutes, Burr apologized if, in fulfilling what he believed to be his duties as President of the Senate, he had ever wounded the feelings of any individual members. He assured his colleagues, however, that he had favored “no party, no cause, no friend [and] had always tried to be fair and impartial.” He confessed his deep love for his country and its Constitution and called the Senate “a sanctuary” and “citadel of law, of order, and of liberty.
“It is here,” he proclaimed, “it is here, in this exalted refuge—here, if anywhere, [that] resistance will be made to the storms of political frenzy and the silent arts of corruption.”33
According to the Washington Federalist, the vice president “then adverted to those affecting sentiments which attended a fixed separation—a dissolution, perhaps forever, of those associations which he hoped had been mutually satisfactory.”
He consoled himself, however . . . that, though they separated, they would be engaged in the common cause of disseminating principles of freedom and social order. He should always regard the proceedings of that body with interest and with solicitude. He should feel for their honor and the national honor so intimately connected with it, and took his leave with expressions of personal respect and with prayers and good wishes.34
With that, Aaron Burr Jr. resigned as vice president of the United States.
New York Senator Samuel Latham Mitchell, a Jeffersonian Republican with little love for Burr, described the rest to his wife:
When Mr. Burr had concluded, he descended from the chair and in a dignified manner walked to the door. . . . On this, the firmness . . . of many of the senators gave way, and they burst into tears. There was a solemn and silent weeping for perhaps five minutes. . . . For my own part, I never experienced anything of the kind so affecting as this parting scene.35
The Washington Federalist described the “extraordinary emotions” that Burr’s farewell had provoked: “The whole Senate was in tears and so unmanned that it was half an hour before they could recover themselves.”36 After Burr had left, the Senate voted unanimously for a resolution thanking Burr for “the impartiality, integrity and ability with which he had presided in the Senate.”37
WITH BURR’S FAREWELL, THE CURTAIN FELL ON THE WAS
HINGTON POLITICAL scene for Easter recess, its players emotionally spent. Congress and the Supreme Court adjourned, and Chief Justice John Marshall returned home to Richmond to attend his wife Polly. She was still suffering the effects of childbirth the previous January of Edward Carrington, their fourth son—actually the tenth child born to the Marshalls, but they had lost four.
As Polly’s condition deteriorated, Marshall assumed all her household chores and oversaw the servants. With the indefatigable Robin Spurlock at his side, he walked to and from the market each day, buying food and other necessities. To avoid recognition, he took to wearing old, often torn work clothes. Although friendly to all and always willing to make “farm talk” about crops and weather, he sought anonymity in public, avoiding attention—and especially discussions about politics and the law.
Once, he appeared in such shabby clothes that a young dandy, new to Richmond, offered him a tip to carry a huge turkey to the gentleman’s nearby home. Without a word of objection, Marshall accepted the tip and carried the bird to the young man’s house as the usually voluble Robin followed behind at a distance—aghast and, for once, not knowing what to do or say.
After presiding over the circuit courts in Richmond and Raleigh in late spring, John Marshall took Polly to their summer home at Oak Hill to reunite with their oldest sons and their families. “My wife continues in wretched health,” Marshall reported later. “Her nervous system is so affected that she cannot sit in a room while a person walks across the floor.” When Marshall entered the house, he removed his shoes and put on slippers to avoid disturbing her. Her illness forced her withdrawal from social contact with everyone but her immediate family.
WHEN MARSHALL RETURNED TO WASHINGTON IN 1806 FOR THE SUPREME Court’s February term, the uneasy truce between the White House, Congress, and Court still held, with neither the President nor his congressional vassals willing to issue a direct challenge to judiciary independence or power. Instead, Jefferson adopted an indirect approach, with plans to install loyal Republicans on the Court as each current justice vacated his seat. He would not get his next chance until the fall, when Federalist Justice William Patterson of New Jersey died at the age of sixty-one. At the urging of Secretary of State James Madison, the President replaced Patterson with New York Supreme Court Judge Brockhorst Livingston, a staunch Republican who had been one of Madison’s classmates at Princeton College.
To Jefferson’s perpetual dismay, Livingston formed an instant bond with Marshall, whose warmth, constant good humor, and deep understanding and command of law won Livingston’s fealty as it had that of Jefferson’s previous appointee William Johnson. In the more than 400 cases they would hear together, Livingston would disagree with the Chief Justice only eight times.
Like Marshall, Livingston was “able and independent” on the bench—“luminous, decisive, earnest and impressive,” according to Justice Joseph Story. Socially he and Marshall were two of a kind—both high-spirited and with “great good humor.”38 Sharing the same lodgings, the same recreation, and the same table at breakfast and dinner produced all but unshakable ties. Marshall had been raised “on Federalism and Madeira,” according to Justice Story, and he soon had other justices reveling over the same diet.
In 1807 the Republican Congress gave Jefferson yet another chance to change the political complexion of the Court by filling the judicial needs of three new states—Kentucky, Tennessee, and Ohio. Jefferson responded by appointing Thomas Todd, who had been Chief Justice of the Kentucky supreme court. A fervent populist Republican, Todd had assailed the federal judiciary for favoring eastern land speculators. “A great part of the lands here are claimed by non-residents,” he fumed to Kentucky Senator John Breckenridge.
Numberless disputes will arise . . . they will bring their suits in the federal court . . . [and] appeal to the Supreme Court. The distance is so great . . . and the indigent circumstances of many of our citizens such that they will not be able to follow the appeal. They must either give up their lands or be forced into an ungenerous and unjust compromise.39
Marshall, however, had deep family ties to Kentucky, understood the plight of settlers there, and shared Todd’s concerns for their welfare. Far from settling on the opposite pole of the legal world from Marshall—as Jefferson had hoped—Todd quickly joined other members of the court in embracing Marshall’s leadership.
“Though bred in a different political school from that of the Chief Justice,” Justice Story said of Todd, “he never failed to sustain those great principles of constitutional law on which the security of the Union depends. He never gave up to party what he thought belonged to the country.”40
Infuriated by his failure to change the high court’s political complexion, Jefferson would soon have another opportunity to lash out at one of his perceived enemies: the President had received a letter from General James Wilkinson, accusing former Vice President Aaron Burr of leading a conspiracy in the West to secede from the Union. Once the western territories declared independence, according to Wilkinson, Burr stood ready to lead an army of 10,000 to seize New Orleans, Mexico, and Spanish territories west of the Mississippi and declare himself emperor of a new North American nation.
Wilkinson’s accusation would lead to one of the most dramatic court cases in American history, pitting a sitting President against his former vice president, and the Chief Justice of the United States sitting in judgment on both.
_______________
* “Hear ye,” from plural imperative of middle English verb oir, “to hear.”
CHAPTER 13
The Trial
GENERAL JAMES WILKINSON HAD CLIMBED ARMY RANKS FROM CAPTAIN to brigadier general during the Revolutionary War. A sly, smooth-talking intriguer, he prowled in the shadows of ambitious officers who plotted to oust George Washington as commander-in-chief at Valley Forge. When the plot failed and its authors exposed, Wilkinson resigned and moved west to Kentucky.
During a trip to Spanish-held New Orleans Wilkinson made a secret agreement with Spanish authorities to lead Kentucky’s secession and incorporation into what was then Spain’s Louisiana territory. “Wilkinson is entirely devoted to us,” the Spanish minister assured his foreign minister. “He enjoys a considerable pension from the King.”1
In 1805 Jefferson appointed Wilkinson governor of northern Louisiana—even as Wilkinson continued fomenting Kentucky secession and union with Spain. Spain gave Wilkinson title to 60,000 acres in Texas as a refuge in case the US government uncovered his plot and forced him to flee US territory. Wilkinson was convinced by then that a Spanish-American war was inevitable, and by establishing ties to both sides, he hoped to ensure his place in the winning camp at the end of the conflict.
To deflect suspicions of his involvement, Wilkinson, like Iago with Othello, whispered rumors he knew the President would eagerly embrace—that Burr was plotting against the President, that Burr was plotting western secession. If Jefferson had any misgivings about Wilkinson’s loyalties, he cast them aside and embarked on an obsessive pursuit of vengeance against Aaron Burr for Burr’s defiance in the 1800 presidential election.
The face of evil? General James Wilkinson had plotted to overthrow George Washington as commander-in-chief during the Revolutionary war. After the war, Wilkinson secretly accepted funds from the Spanish government to organize the secession of Kentucky from the United States and convinced President Thomas Jefferson that Vice President Aaron Burr was masterminding the plot. (FROM THE LIFE OF JOHN MARSHALL, BY ALBERT J. BEVERIDGE, VOL. III: 290)
Causing death in a duel was a capital crime in New York, though not in New Jersey, but Jefferson pressured Republican district attorneys in both states to order Burr arrested for the murder of Alexander Hamilton. Burr, however, fled west, out of their jurisdictions after his farewell to the Senate.
“In New York I am to be disenfranchised and in New Jersey hanged,” he explained to his son-in-law. “Having substantial objections to both, I shall . . . seek another country.”2
&
nbsp; Although he would be deeply involved in Burr’s fate in the months ahead, Chief Justice John Marshall had left Washington after the Chase trial and was riding the circuit in Virginia and North Carolina, all but oblivious to and uninformed about Burr’s activities.
Burr was, in fact, almost bankrupt when he left the nation’s capital. Forced to abandon his lucrative New York law practice while serving as vice president in Washington, he now eyed the Louisiana Territory wilderness as a safe haven to begin life anew on vast tracts of vacant land anyone could claim for a pittance. Still a beloved—indeed, heroic—figure to many Americans, Burr had championed western interests as a US senator and found a warm welcome as he traveled west. When he reached Nashville on May 29, church bells pealed and cannons roared to welcome the former vice president and Revolutionary War hero. General Andrew Jackson staged a grand, western-style parade in Burr’s honor—even urging Burr to settle in Tennessee and run for senator or President. Jackson invited him to stay at his home in Nashville, then publicly hailed Burr for defending his honor by facing death courageously against Hamilton. Far from decrying duels, Tennesseans, like most westerners and southerners, saw dueling as a basic right and obligation of all fighting men. A year later Jackson himself would kill a horse breeder in a duel that left a bullet lodged in Jackson’s chest as a painful memento of the encounter the rest of his life.
On June 6 Burr reached Fort Massac, on the Ohio River, where General Wilkinson greeted the former vice president with tales of great wealth for the taking in the West. A heavy drinker, Wilkinson confided certain knowledge that Kentucky, Tennessee, Ohio, and parts of Georgia and Carolina would soon separate from the Union, form a new and independent nation, and send a combined army into Mexico to plunder Spanish gold and silver mines. Shortly after Burr left, Wilkinson wrote to President Jefferson accusing Burr of treason—of hatching the very plot for western secession that he himself had devised and that the Spanish government was paying him to put in motion.
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