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who was notoriously soon to be proceeded against for high treason by those representing the Executive of the United States.



Professor Tucker, who was present on the occasion, and who evidently speaks by authority, states that "no one was afterwards more sensible" of the "impropriety" of his conduct than Judge Marshall.' While this will probably mitigate every one's estimate of the original act, none the less does that act assist in explaining the feelings with which Jefferson, and his friends, looked upon the proceedings of the Chief Justice preliminary to and pending Burr's trials.

The Circuit Court opened at the appointed time, Judges Marshall and Griffin presiding. Burr appeared with an imposing array of counsel-Edmund Randolph, Mr. Wickham, Mr. Botts and Mr. Baker; and Luther Martin, of Maryland, and Charles Lee, formerly Attorney-General of the United States, were associated in the management of the trials at a later stage. For the United States, appeared George Hay (the attorney of the district), William Wirt and Alexander McRae.

The defence claimed the right of challenging the grand jury "for favor," and this being allowed, some eminent Republicans -including W. B. Giles and W. C. Nicholas-were so challenged and "advised" by the Chief Justice to withdraw.

It is not proposed to give here beyond a few characteristic incidents of the various legal proceedings which took place. On the 9th of June, Burr himself moved for a subpœna duces tecum, directed to the President, requiring him, or the secretaries having them in charge, to forthwith bring a letter of General Wilkinson to the President, mentioned in a message of the latter to Congress, together with the documents accompanying the letter, a copy of the President's answer to the letter, and the military and naval orders given to the officers of the army and navy at or near New Orleans concerning Burr "or his property."

1 After mentioning that the Chief Justice "was a near neighbor and intimate friend of the entertainer," Professor Tucker says: "It is proper to add, this gentleman informed the Chief Justice in the course of the morning, that he expected Colonel Burr to dinner. The Chief Justice considered that, having already accepted the invitation, it might be regarded as undue fastidiousness, and perhaps a censure on his friend, then to decline it. He accordingly went to the dinner, but he had no communication whatever with Burr; sat at the opposite end of the table, and withdrew at an early hour after dinner. There was an evident impropriety in this association between parties thus related to the public and to each other, and no one was afterwards more sensible of it than the Chief Justice himself, but it was not an act of deliberation, but merely inconsiderate."-Life of Jefferson.

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Mr. Hay pledged himself, "if possible, to obtain the papers which were wanted, and not only those, but every paper which might be necessary to the elucidation of the case," and "he had no doubt he should obtain them." But he contended that the President could not be compelled to furnish the court with official or other confidential papers in his department, without reference to his own opinion whether the public good would permit their disclosure. He raised other points not important here. The spirit in which the proceedings had been permitted to open will derive some illustration from the following uninterrupted remarks of Mr. Martin:

"I have asserted that Colonel Burr was entitled to a copy of these orders [the official orders of the Navy and War departments]. We intended to show that these orders were contrary to the Constitution and the laws, and that they entitled Colonel Burr to the right of resistance. We intended to show, that by this particular order [that of the Secretary of the Navy to seize or destroy Burr's flotilla] his property and his person were to be destroyed; yes, by these tyrannical orders, the life and property of an innocent man were to be exposed to destruction. We did not expect these originals themselves. But we did apply for copies, and were refused under Presidential influence. In New York, on the farcical trials of Ogden and Smith," the officers of the Government screened themselves from attending, under the sanction of the President's name. Perhaps the same farce may be repeated here; and it is for this reason that we apply directly to the President of the United States. This is a peculiar case, sir. The President 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 himself, and pretended to search the heart of my highly respected friend. He has proclaimed him a traitor in the face of that country which has rewarded him. He has let slip the dogs of war, the hell hounds of persecution, to hunt down my friend. And would this President of the United States, who has raised all this absurd clamor, pretend to keep back the papers which were wanted for this trial, where life itself is at stake ?"

The following is a part of Mr. Wirt's reply:

"I cannot take my seat without expressing my deep and sincere sorrow at the policy which the gentlemen in the defence have thought it necessary to adopt. As to Mr. Martin, I should have been willing to impute this fervid language to the sympathies and resentments of that friendship which he has taken such frequent occa sions to express for the prisoner, his honorable friend. In the cause of friendship I can pardon zeal even up to the point of intemperance; but the truth is, sir, that before Mr. Martin came to Richmond, this policy was settled, and on every question incidentally brought before the court, we were stunned with invectives against the Administration. I appeal to your recollection, sir, whether this policy was not

1 Robertson's Report, vol. i. p. 115.

For their connection with Miranda's expedition from that city.





manifested even so early as in those new and until now unheard of challenges to the grand jury for favor? Whether that policy was not followed up with increased spirit, in the very first speeches which were made in this case; those of Mr. Botts and Mr. Wickham on their previous question pending the attorney's motion to commit? Whether they have not seized with avidity every subsequent occasion, and on every question of mere abstract law before the court, flew off at a tangent to launch into declamations against the Government-exhibiting the prisoner continually as a persecuted patriot-a Russell or a Sydney bleeding under the scourge of a despot.


"I beg to know, sir, if the course which gentlemen pursue is not disrespectful to the court itself? Suppose there are any foreigners here accustomed to regular government in their own country, what can they infer from hearing the federal Administration thus reviled to the federal judiciary-hearing the judiciary told that the Administration are bloodhounds, hunting this man with a keen and savage thirst for blood-that they now suppose they have hunted him into their toils and have him safe? Sir, no man, foreigner or citizen, who hears this language addressed to the court, and received with all the complacency at least which silence can imply, can make any inferences from it very honorable to the court. It would only be inferred, while they are thus suffered to roll and luxuriate in these gross invectives against the Administration, that they are furnishing the joys of a Mahometan paradise to the court as well as to their client. I hope that the court, for their own sakes, will compel a decent respect to that Government of which they themselves form branch!"

The Chief Justice observed, that remarks had been made, on both sides, of which the court did not approve, yet it had hitherto avoided interfering; but it hoped, henceforth, these improprieties would be avoided.

This "hope" appears to have received very little attention. Two days afterwards, Mr. Martin launched out into an attack on the Government, very nearly the same in substance with that already quoted. And he made the following reply to Mr. Wirt:

"The gentleman has told us that respect ought to be paid to the officers of Government. It is granted. I thought so once. I thought that the officers of Government ought to be treated with high respect, however much their conduct ought to be the subject of criticism; and I invariably acted according to that principle. If I have changed my opinion, I owe it to the gentleman himself, and the party he is connected with. They formerly thought differently. That gentleman and his friends so loudly and incessantly clamored against the officers of Government, that they contributed to effect a change in the Administration, and are now, in consequence, basking in the sunshine of office; and therefore they wish to inculcate and receive that respect which they formerly denied to others in the same position," etc.

He was not interrupted, and these invectives were repeated

at intervals without interruption through the subsequent proceedings.

On learning the language that had been tolerated towards himself by the court, the President's patience gave way. Rumor ascribed to Martin a full knowledge of his "honorable friend's" schemes. The President was in possession of a letter which directly implicated him, written by an old Revolutionary captain, named Graybell, then a flour merchant in Baltimore, who was represented to be a man of entire respectability and credibility. The President wrote Hay (June 19th):

"We think you should immediately dispatch a subpoena for Graybell; and while that is on the road, you will have time to consider in what form you will use his his testimony; e. g. shall Luther Martin be summoned as a witness against Burr, and Graybell held ready to confront him? It may be doubted whether we could examine a witness to discredit our own witness. Besides, the lawyers say that they are privileged from being forced to breaches of confidence, and that no others are. Shall we move to commit Luther Martin, as particeps criminis with Burr? Graybell will fix upon him misprision of treason at least. And at any rate, his evidence will put down this unprincipled and impudent Federal bull-dog, and add another proof that the most clamorous defenders Burr are all his accomplices. It will explain why Luther Martin flew so hastily to the aid of his honorable friend,' abandoning his clients and their property during a session of a principal court in Maryland, now filled, as I am told, with the clamors and ruin of his clients."

Martin was a son-in-law of that Michael Cresap mentioned in the Notes on Virginia as the murderer of Logan's family. Instead of treating this alleged misstatement as a historical error, he acted on the assumption that Mr. Jefferson had substantially invented a tale to disprove a theory; and after waiting some years (until Mr. Jefferson became the leader of the Republican party) he attacked him in a letter filled with scurrilities.' After Mr. Jefferson's accession to the Presidency, Martin was eager employed in important cases where the Government was plaintiff or complainant, and he as eagerly availed himself of every such opportunity to attack the President personally with a license and audacity seldom heard at the bar. He is described by his contemporaries as an able, but coarse man-possessed of violent and unrestrained passions-and addicted to deep drinking.'

Those who desire to see this specimen of Mr. Martin's style, will find it at p. 211, vol. v. of the London edition of Porcupine's Works.

The fullest personal sketch we have ever seen of Mr. Martin, is from Blennerhasset's diary, kept during Burr's trial. He says:

"As we were chatting after dinner, in staggered the whole rear guard of Burr's




Whatever Gray bell's testimony against Martin would have amounted to, it is doubtless fortunate that the President's momentary impressions were not acted on. The arrest of one of Burr's counsel during the trial would have afforded room for misconceptions in the public mind, while there was not any danger of serious ones as matters already stood.

On the 13th of June, the Chief-Justice granted the defendant's motion for a subpoena duces tecum to the President. Hay, as he declared he would do, had previously written the President for the papers desired by the defence. Mr. Jefferson replied immediately (June 12th), and while reserving to himself "the necessary right of the President of the United States to decide, independently of all other authority, what papers, coming to him as President, the public interests permitted to be communicated, he assured" the Attorney "of his readiness, under that restriction, voluntarily to furnish on all occasions whatever the purposes of justice might require." He stated that the letter of Wilkinson called for by the accused, with every other paper relating to the charges against Burr, had been delivered to the Attorney-General, when the latter went to Richmond in March, and that he (the President) supposed all those papers were delivered by the Attorney-General to Mr. Hay. He promised to write immediately to the former for the desired letter. In regard to orders issued at the War and Navy departments con

forensic army-I mean the celebrated Luther Martin, who yesterday concluded his fourteen hours' speech. I was too much interested by the little I had seen, and the great things I had heard, of this man's powers and passions, not to improve the present opportunity to survey him in every light the length of his visit would permit. I accordingly recommended our brandy as superior, placing a pint-tumbler before him. No ceremonies retarded the libation. Imagine a man capable, in that space of time, to deliver some account of an entire week's proceedings in the trial, with extracts from memory of several speeches on both sides, including long ones from his; to recite half columns verbatim of a series of papers, of which he said he is the author; to caricature Jefferson; to give a history of his acquaintance with Burr; expatiate on his virtues and sufferings, maintain his credit, embellish his fame, and intersperse the whole with sententious reprobations and praises, of several other characters; some estimate, with these preparations, may be formed of this man's powers, which are yet shackled by a preternatural secretion or excretion of saliva which embarrasses his delivery. In this, his manner is rude, and his language ungrammatical; which is cruelly aggravated upon his hearers by the verbosity and repetition of his style. With the warmest passions which hurry him like a torrent, over those characters or topics that lie most in the way of their course, he has, by practice, acquired the faculty of curbing his feelings, which he never suffers to charge the enemy till broken by the superior numbers of his arguments and authorities, by which he always outflanks him, when he lets loose the reserve upon the centre, with redoubled impetuosity. Yet fancy has been denied to his mind, or grace to his person or habits. These are gross and incapable of restraint, even upon the most solemn public occasions. This is, at all times, awkward and disgusting. Hence his invectives are rather coarse than pointed; his eulogiums more fulsome than pathetic. In short, every trait of his portrait may be given in one word-he is 'the Thersites of the law.""

VOL. III.-14

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