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

Several witnesses for the Government were sworn, among them Commodore Thomas Truxtun, Commodore Stephen Decatur, and "General" William Eaton. When Dr. Erich Bollmann was called to the book, Hay stopped the administration of the oath. Bollmann had told the Government all about Burr's "plans, designs and views," said the District Attorney; "as these communications might criminate doctor Bollman before the grand jury, the president has communicated to me this pardon" – and Hay held out the shameful document. He had already offered it to Bollmann, he informed Marshall, but that incomprehensible person would neither accept nor reject it. His evidence was "extremely material"; the pardon would "completely exonerate him from all the penalties of the law." And so, exclaimed Hay, "in the presence of this court, I offer this pardon to him, and if he refuses, I shall deposit it with the clerk for his use." Then turning to Bollmann, Hay dramatically asked:

"Will you accept this pardon?"

"No, I will not, sir," firmly answered Bollmann.

Then, said Hay, the witness must be sent to the grand jury "with an intimation, that he has been pardoned."

"It has always been doctor Bollman's intention to refuse this pardon," broke in Luther Martin. He had not done so before only "because he wished to have this opportunity of publicly rejecting it."

Witness after witness was sworn and sent to the grand jury, Hay and Martin quarreling over the effect of Jefferson's pardon of Bollmann. Marshall said that it would be better "to settle … the validity of the pardon before he was sent to the grand jury." Again Hay offered Bollmann the offensive guarantee of immunity; again it was refused; again Martin protested.

"Are you then willing to hear doctor Bollman indicted?" asked Hay, white with anger. "Take care," he theatrically cried to Martin, "in what an awful condition you are placing this gentleman."

Bollmann could not be frightened, retorted Martin: "He is a man of too much honour to trust his reputation to the course which you prescribe for him."

Marshall "would perceive," volunteered the nonplussed and exasperated Hay, "that doctor Bollman now possessed so much zeal, as even to encounter the risk of an indictment for treason."

The Chief Justice announced that he could not, "at present, declare, whether he be really pardoned or not." He must, he said, "take time to deliberate."

Hay persisted: "Categorically then I ask you, Mr. Bollman, do you accept your pardon?"

"I have already answered that question several times. I say no," responded Bollmann. "I repeat, that I would have refused it before, but that I wished this opportunity of publicly declaring it."¹¹²³

Bollmann was represented by an attorney of his own, a Mr. Williams, who now cited an immense array of authorities on the various questions involved. Counsel on both sides entered into the discussion. One "reason why doctor Bollman has refused this pardon" was, said Martin, "that it would be considered as an admission of guilt." But "doctor Bollman does not admit that he has been guilty. He does not consider a pardon as necessary for an innocent man. Doctor Bollman, sir, knows what he has to fear from the persecution of an angry government; but he will brave it all."

Yes! cried Martin, with immense effect on the excited spectators, "the man, who did so much to rescue the marquis la Fayette from his imprisonment, and who has been known at so many courts, bears too great a regard for his reputation, to wish to have it sounded throughout Europe, that he was compelled to abandon his honour through a fear of unjust persecution." Finally the true-hearted and defiant Bollmann was sent to the grand jury without having accepted the pardon, and without the legal effect of its offer having been decided.¹¹²⁴

When the Richmond Enquirer, containing Marshall's opinion on the issuance of the subpœna duces tecum, reached Washington, the President wrote to Hay an answer of great ability, in which Jefferson the lawyer shines brilliantly forth: "As is usual where an opinion is to be supported, right or wrong, he [Marshall] dwells much on smaller objections, and passes over those which are solid… He admits no exception" to the rule "that all persons owe obedience to subpœnas … unless it can be produced in his law books."

"But," argues Jefferson, "if the Constitution enjoins on a particular officer to be always engaged in a particular set of duties imposed on him, does not this supersede the general law, subjecting him to minor duties inconsistent with these? The Constitution enjoins his [the President's] constant agency in the concerns of 6. millions of people. Is the law paramount to this, which calls on him on behalf of a single one?"

Let Marshall smoke his own tobacco: suppose the Sheriff of Henrico County should summon the Chief Justice to help "quell a riot"? Under the "general law" he is "a part of the posse of the State sheriff"; yet, "would the Judge abandon major duties to perform lesser ones?" Or, imagine that a court in the most distant territory of the United States "commands, by subpœnas, the attendance of all the judges of the Supreme Court. Would they abandon their posts as judges, and the interests of millions committed to them, to serve the purposes of a single individual?"

The Judiciary was incessantly proclaiming its "independence," and asserting that "the leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other." But where would be such independence, if the President "were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?"

Jefferson vigorously resented Marshall's personal reference to him. "If he alludes to our annual retirement from the seat of government, during the sickly season," Hay ought to tell Marshall that Jefferson carried on his Executive duties at Monticello.¹¹²⁵

Crowded with sensations as the proceedings had been from the first, they now reached a stage of thrilling movement and high color. The long-awaited and much-discussed Wilkinson had at last arrived "with ten witnesses, eight of them Burr's select men," as Hay gleefully reported to Jefferson.¹¹²⁶ Fully attired in the showy uniform of the period, to the last item of martial decoration, the fat, pompous Commanding General of the American armies strode through the crowded streets of Richmond and made his way among the awed and gaping throng to his seat by the side of the Government's attorneys.

Washington Irving reports that "Wilkinson strutted into the Court, and … stood for a moment swelling like a turkey cock." Burr ignored him until Marshall "directed the clerk to swear General Wilkinson; at the mention of the name Burr turned his head, looked him full in the face with one of his piercing regards, swept his eye over his whole person from head to foot, as if to scan its dimensions, and then coolly … went on conversing with his counsel as tranquilly as ever."¹¹²⁷

Wilkinson delighted Jefferson with a different description: "I saluted the Bench & in spite of myself my Eyes darted a flash of indignation at the little Traitor, on whom they continued fixed until I was called to the Book – here Sir I found my expectations verified – This Lyon hearted Eagle Eyed Hero, sinking under the weight of conscious guilt, with haggard Eye, made an Effort to meet the indignant salutation of outraged Honor, but it was in vain, his audacity failed Him, He averted his face, grew pale & affected passion to conceal his perturbation."¹¹²⁸

But the countenance of a thin, long-faced, roughly garbed man sitting among the waiting witnesses was not composed when Wilkinson appeared. For three weeks Andrew Jackson to all whom he met had been expressing his opinion of Wilkinson in the unrestrained language of the fighting frontiersman;¹¹²⁹ and he now fiercely gazed upon the creature whom he regarded as a triple traitor, his own face furious with scorn and loathing.

Within the bar also sat that brave and noble man whose career of unbroken victories had made the most brilliant and honorable page thus far in the record of the American Navy – Commodore Thomas Truxtun. He was dressed in civilian attire.¹¹³⁰ By his side, clad as a man of business, sat a brother naval hero of the old days, Commodore Stephen Decatur.¹¹³¹ A third of the group was Benjamin Stoddert, the Secretary of the Navy under President Adams.¹¹³²

In striking contrast with the dignified appearance and modest deportment of these gray-haired friends was the gaudily appareled, aggressive mannered Eaton, his restlessness and his complexion advertising those excesses which were already disgusting even the hard-drinking men then gathered in Richmond. Dozens of inconspicuous witnesses found humbler places in the audience, among them Sergeant Jacob Dunbaugh, bearing himself with mingled bravado, insolence, and humility, the stripes on the sleeve of his uniform designating the position to which Wilkinson had restored him.

Dunbaugh had gone before the grand jury on Saturday, as had Bollmann; and now, one by one, Truxtun, Decatur, Eaton, and others were sent to testify before that body.

Eaton told the grand jury the same tale related in his now famous affidavit.¹¹³³

Commodore Truxtun testified to facts as different from the statements made by "the hero of Derne"¹¹³⁴ as though Burr had been two utterly contrasted persons. During the same period that Burr had seen Eaton, he had also conversed with him, said Truxtun. Burr mentioned a great Western land speculation, the digging of a canal, and the building of a bridge. Later on Burr had told him that "in the event of a war with Spain, which he thought inevitable, … he contemplated an expedition to Mexico," and had asked Truxtun "if the Havanna could be easily taken … and what would be the best mode of attacking Carthagena and La Vera Cruz by land and sea." The Commodore had given Burr his opinion "very freely," part of it being that "it would require a naval force." Burr had answered that "that might be obtained," and had frankly asked Truxtun if he "would take the command of a naval expedition."

"I asked him," testified Truxtun, "if the executive of the United States were privy to, or concerned in the project? He answered emphatically that he was not: … I told Mr. Burr that I would have nothing to do with it… He observed to me, that in the event of a war [with Spain], he intended to establish an independent government in Mexico; that Wilkinson, the army, and many officers of the navy would join… Wilkinson had projected the expedition, and he had matured it; that many greater men than Wilkinson would join, and that thousands to the westward would join."

In some of the conversations "Burr mentioned to me that the government was weak," testified Truxtun, "and he wished me to get the navy of the United States out of my head;¹¹³⁵ … and not to think more of those men at Washington; that he wished to see or make me, (I do not recollect which of those two terms he used) an Admiral."

Burr wished Truxtun to write to Wilkinson, to whom he was about to dispatch couriers, but Truxtun declined, as he "had no subject to write about." Again Burr urged Truxtun to join the enterprise – "several officers would be pleased at being put under my command… The expedition could not fail – the Mexicans were ripe for revolt." Burr "was sanguine there would be war," but "if he was disappointed as to the event of war, he was about to complete a contract for a large quantity of land on the Washita; that he intended to invite his friends to settle it; that in one year he would have a thousand families of respectable and fashionable people, and some of them of considerable property; that it was a fine country, and that they would have a charming society, and in two years he would have doubled the number of settlers; and being on the frontier, he would be ready to move whenever a war took place…

"All his conversations respecting military and naval subjects, and the Mexican expedition, were in the event of a war with Spain." Truxtun testified that he and Burr were "very intimate"; that Burr talked to him with "no reserve"; and that he "never heard [Burr] speak of a division of the union."

Burr had shown Truxtun the plan of a "kind of boat that plies between Paulus-Hook and New-York," and had asked whether such craft would do for the Mississippi River and its tributaries, especially on voyages upstream. Truxtun had said they would. Burr had asked him to give the plans to "a naval constructor to make several copies," and Truxtun had done so. Burr explained that "he intended those boats for the conveyance of agricultural products to market at New-Orleans, and in the event of war [with Spain], for transports."

The Commodore testified that Burr made no proposition to invade Mexico "whether there was war [with Spain] or not." He was so sure that Burr meant to settle the Washita lands that he was "astonished" at the newspaper accounts of Burr's treasonable designs after he had gone to the Western country for the second time.

Truxtun had freely complained of what amounted to his discharge from the Navy, being "pretty full" himself of "resentment against the Government," and Burr "joined [him] in opinion" on the Administration.¹¹³⁶

Jacob Dunbaugh told a weird tale. At Fort Massac he had been under Captain Bissel and in touch with Burr. His superior officer had granted him a furlough to accompany Burr for twenty days. Before leaving, Captain Bissel had "sent for [Dunbaugh] to his quarters," told him to keep "any secrets" Burr had confided to him, and "advised" him "never to forsake Col. Burr"; and "at the same time he made [Dunbaugh] a present of a silver breast plate."

After Dunbaugh had joined the expedition, Burr had tried to persuade him to get "ten or twelve of the best men" among his nineteen fellow soldiers then at Chickasaw Bluffs to desert and join the expedition; but the virtuous sergeant had refused. Then Burr had asked him to "steal from the garrison arms such as muskets, fusees and rifles," but Dunbaugh had also declined this reasonable request. As soon as Burr learned of Wilkinson's action, he told Dunbaugh to come ashore with him armed "with a rifle," and to "conceal a bayonet under [his] clothes… He told me he was going to tell me something I must never relate again, … that General Wilkinson had betrayed him … that he had played the devil with him, and had proved the greatest traitor on the earth."

Just before the militia broke up the expedition, Burr and Wylie, his secretary, got "an axe, auger and saw," and "went into Colonel Burr's private room and began to chop," Burr first having "ordered no person to go out." Dunbaugh did go out, however, and "got on the top of the boat." When the chopping ceased, he saw that "a Mr. Pryor and a Mr. Tooly got out of the window," and "saw two bundles of arms tied up with cords, and sunk by cords going through the holes at the gunwales of Colonel Burr's boat." The vigilant Dunbaugh also saw "about forty or forty-three stands [of arms], besides pistols, swords, blunderbusses, fusees, and tomahawks"; and there were bayonets too.¹¹³⁷

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 substituted 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 days¹¹³⁸ 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.¹¹³⁹

"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."¹¹⁴⁰

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.¹¹⁴¹ The youthful Swartwout as deeply impressed the grand jury with his honesty and truthfulness as Wilkinson impressed that body with his untrustworthiness and duplicity.¹¹⁴²

Peter Taylor and Jacob Allbright then recounted their experiences.¹¹⁴³ 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,¹¹⁴⁴ who swore that Burr's purposes were to settle the Washita 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 Blennerhassett of Virginia. The indictment for treason charged that on December 13, 1806, at Blennerhassett'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.¹¹⁴⁵

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.¹¹⁴⁶

John Randolph, as foreman of the grand jury, his nose close to the ground on the scent of the principal culprit, came into court the day after the indictment of Burr and Blennerhassett 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 circumstances 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.¹¹⁴⁷

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 attitude & tone assumed 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."¹¹⁴⁸

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 subpœna duces tecum. 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 passages at arms became ever sharper.¹¹⁴⁹

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 passions of the grand jury are endeavored to be excited against him, at all events";¹¹⁵⁰ Hay's mind is "harder than Ajax's seven fold shield 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 multitude 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.¹¹⁵¹