Part 3 (1/2)

But there was one human heart, one human understanding-and that, in ordinary circ.u.mstances, a very good one-which was quite willing to shoulder just such a monstrous perversion, or at least its equivalent, and that heart was John Marshall's. The discussion of the motion to arrest the evidence continued ten days, most of the time being occupied by Burr's attorneys. * Finally, on the last day of the month, the Chief Justice handed down an opinion accepting practically the whole contention of Burr's attorneys, but offering a totally new set of reasons for it. On the main question at issue, namely, whether under the Const.i.tution all involved in a treasonable enterprise are princ.i.p.als, Marshall pretended not to pa.s.s; but in fact he rejected the essential feature of the Common Law doctrine, namely, the necessary legal presence at the scene of action of all parties to the conspiracy. The crux of his argument he embodied in the following statement: ”If in one case the presence of the individual make the guilt of the [treasonable] a.s.semblage HIS guilt, and in the other case, the procurement by the individual make the guilt of the [treasonable] a.s.semblage, his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses.” Unfortunately for this argument, the Const.i.tution does not require that the ”component parts” of the overt act be proved by two witnesses, but only that the overt act-the corpus delicti-be so proved; and for the simple reason that, when by further evidence any particular individual is connected with the treasonable combination which brought about the overt act, that act, a.s.suming the Common Law doctrine, becomes his act, and he is accordingly responsible for it at the place where it occurred. Burr's attorneys admitted this contention unreservedly. Indeed, that was precisely the reason why they had opposed the Common Law doctrine.

* A recurrent feature of their arguments was a denunciation of ”constructive treason.” But this was mere declamation. n.o.body was charging Burr with any sort of treason except that which is specifically defined by the Const.i.tution itself, namely, the levying of war against the United States. The only question at issue was as to the method of proof by which this crime may be validly established in the case of one accused of procuring treason. There was also much talk about the danger and injustice of dragging a man from one end of the country to stand trial for an act committed at the other end of it. The answer was that, if the man himself procured the act or joined others in bringing it about, he ought to stand trial where the act occurred. This same ”injustice” may happen today in the case of murder!

Marshall's effort to steer between this doctrine and its obvious consequences for the case before him placed him, therefore, in the curious position of demanding that two overt acts be proved each by two witnesses. But if two, why not twenty? For it must often happen that the traitor's connection with the overt act is demonstrable not by a single act but a series of acts. Furthermore, in the case of procurers of treason, this connection will ordinarily not appear in overt acts at all but, as in Burr's own case, will be covert. Can it be, then, that the Const.i.tution is chargeable with the absurdity of regarding the procurers of treason as traitors and yet of making their conviction impossible? The fact of the matter was that six months earlier, before his att.i.tude toward Burr's doings had begun to take color from his hatred and distrust of Jefferson, Marshall had entertained no doubt that the Common Law doctrine underlay the const.i.tutional definition of treason. Speaking for the Supreme Court in the case of Bollmann and Swartwout, he had said: ”It is not the intention of the Court to say that no individual can be guilty of this crime who has not appeared in arms against his country; on the contrary, if war be actually levied, that is, if a body of men be actually a.s.sembled for the purpose of effecting by force a treasonable purpose, all those who perform any part however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered traitors.” Marshall's effort to square this previous opinion with his later position was as unconvincing as it was labored. *

* The way in which Marshall proceeded to do this was to treat the phrase ”perform a part” as demanding ”a levying of war” on the part of the performer. (Robertson, ”Reports,” vol. II, p. 438.) But this explanation will not hold water. For what then becomes of the phrase ”scene of action” in the pa.s.sage just quoted? What is the difference between the part to be performed ”however minute,” and the ”action” from which the performer maybe ”however remote”? It is perfectly evident that the ”action” referred to is the a.s.semblage which is regarded as the overt act of war, and that the ”part however minute” is something very different.

Burr's attorneys were more prudent: they dismissed Marshall's earlier words outright as obiter dicta-and erroneous at that! Nevertheless when, thirty years later, Story, Marshall's friend and pupil, was in search of the best judicial definition of treason within the meaning of the Const.i.tution, he selected this sentence from the case of Bollmann and Swartwout and pa.s.sed by the elaborate opinion in Burr's case in significant silence. But reputation is a great magician in trans.m.u.ting heresy into accepted teaching. Posthumously Marshall's opinion has attained a rank and authority with the legal profession that it never enjoyed in his own time. Regarding it, therefore, as today established doctrine, we may say that it has quite reversed the relative importance of conspiracy and overt act where the treason is by levying war. At the Common Law, and in the view of the framers of the Const.i.tution, the importance of the overt act of war was to make the conspiracy visible, to put its existence beyond surmise. By Marshall's view each traitor is chargeable only with his own overt acts, and the conspiracy is of importance merely as showing the intention of such acts. And from this it results logically, as Marshall saw, though he did not venture to say so explicitly, that the procurer of treason is not a traitor unless he has also partic.i.p.ated personally in an overt act of war. As Wirt very justifiably contended, such a result is ”monstrous,” and, what is more, it has not been possible to adhere to it in practice. In recent legislation necessitated by the Great War, Congress has restored the old Common Law view of treason but has avoided the const.i.tutional difficulty by labeling the offense ”Espionage.” Indeed, the Espionage Act of June 15, 1917, sc.r.a.ps Marshall's opinion pretty completely. *

* See especially t.i.tle I, Section 4, of the Act. For evidence of the modern standing of Marshall's opinion, see the chorus of approval sounded by the legal fraternity in Dillon's three volumes. In support of the Common Law doctrine, see the authorities cited in 27 ”Yale Law Journal”, p. 342 and footnotes; the chapter on Treason in Simon Greenleaf's well-known ”Treatise on the Law of Evidence;” United States w. Mitch.e.l.l, 2 Dallas, 348; and Druecker vs. Salomon, 21 Wis., 621.

On the day following the reading of Marshall's opinion, the prosecution, unable to produce two witnesses who had actually SEEN Burr procure the a.s.semblage on the island, abandoned the case to the jury. Shortly thereafter the following verdict was returned: ”We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty.” At the order of the Chief Justice this Scotch verdict was entered on the records of the court as a simple Not Guilty.

Marshall's conduct of Burr's trial for treason is the one serious blemish in his judicial record, but for all that it was not without a measure of extenuation. The President, too, had behaved deplorably and, feeling himself on the defensive, had pressed matters with most unseemly zeal, so that the charge of political persecution raised by Burr's attorneys was, to say the least, not groundless. Furthermore, in opposing the President in this matter, Marshall had shown his usual political sagacity. Had Burr been convicted, the advantage must all have gone to the Administration. The only possible credit the Chief Justice could extract from the case would be from a.s.suming that lofty tone of calm, unmoved impartiality of which Marshall was such a master-and never more than on this occasion-and from setting himself sternly against popular hysteria. The words with which his opinion closes have been often quoted:

”Much has been said in the course of the argument on points on which the Court feels no inclination to comment particularly, but which may, perhaps not improperly receive some notice.

”That this Court dare not usurp power is most true.

”That this Court dare not shrink from its duty is not less true.

”No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the popular subject of calumny. No man, might he let the bitter cup pa.s.s from him without self-reproach, would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace.”

One could not require a better ill.u.s.tration of that faculty of ”apparently deep self-conviction” which Wirt had noted in the Chief Justice.

Finally, it must be owned that Burr's case offered Marshall a tempting opportunity to try out the devotion of Republicans to that ideal of judicial deportment which had led them so vehemently to criticize Justice Chase and to charge him with being ”oppressive,” with refusing to give counsel for defense an opportunity to be heard, with transgressing the state law of procedure, with showing too great liking for Common Law ideas of sedition, with setting up the President as a sort of monarch beyond the reach of judicial process. Marshall's conduct of Burr's trial now exactly reversed every one of these grounds of complaint. Whether he intended it or not, it was a neat turning of the tables.

But Jefferson, who was at once both the most theoretical and the least logical of men, was of course hardly prepared to see matters in that light. As soon as the news reached him of Burr's acquittal, he ordered Hay to press the indictment for misdemeanor-not for the purpose of convicting Burr, but of getting the evidence down in a form in which it should be available for impeachment proceedings against Marshall. For some weeks longer, therefore, the Chief Justice sat listening to evidence which was to be used against himself. But the impeachment never came, for a chain is only as strong as its weakest link, and the weakest link in the combination against the Chief Justice was a very fragile one indeed-the iniquitous Wilkinson. Even the faithful and melancholy Hay finally abandoned him. ”The declaration, which I made in court in his favor some time ago,” he wrote the President, ”was precipitate.... My confidence in him is destroyed.... I am sorry for it, on his account, on the public account, and because you have expressed opinions in his favor.” It was obviously impossible to impeach the Chief Justice for having prevented the hanging of Aaron Burr on the testimony of such a miscreant.

Though the years immediately following the Burr trial were not a time of conspicuous activity for Marshall, they paved the way in more than one direction for his later achievement. Jefferson's retirement from the Presidency at last relieved the Chief Justice from the warping influence of a hateful personal contest and from anxiety for his official security. Jefferson's successors were men more willing to identify the cause of the Federal Judiciary with that of national unity. Better still, the War of 1812 brought about the demise of the Federalist party and thus cleared the Court of every suspicion of partisan bias. Henceforth the great political issue was the general one of the nature of the Union and the Const.i.tution, a field in which Marshall's talent for debate made him master. In the meantime the Court was acquiring that personnel which it was to retain almost intact for nearly twenty years; and, although the new recruits came from the ranks of his former party foes, Marshall had little trouble in bringing their views into general conformity with his own const.i.tutional creed. Nor was his triumph an exclusively personal one. He was aided in very large measure by the fact that the war had brought particularism temporarily into discredit in all sections of the country. Of Marshall's a.s.sociates in 1812, Justice Was.h.i.+ngton alone had come to the bench earlier, yet he was content to speak through the mouth of his ill.u.s.trious colleague, save on the notable occasion when he led the only revolt of a majority of the Court from the Chief Justice's leaders.h.i.+p in the field of Const.i.tutional Law. * Johnson of South Carolina, a man of no little personal vanity, affected a greater independence, for which he was on one occasion warmly congratulated by Jefferson; yet even his separate opinions, though they sometimes challenge Marshall's more sweeping premises and bolder method of reasoning, are after all mostly concurring ones. Marshall's really invaluable aid among his a.s.sociates was Joseph Story, who in 1811, at the age of thirty-two, was appointed by Madison in succession to Cus.h.i.+ng. Still immature, enthusiastically willing to learn, warmly affectionate, and with his views on const.i.tutional issues as yet unformed, Story fell at once under the spell of Marshall's equally gentle but vastly more resolute personality; and the result was one of the most fruitful friends.h.i.+ps of our history. Marshall's ”original bias,” to quote Story's own words, ”as well as the choice of his mind, was to general principles and comprehensive views, rather than to technical or recondite learning.” Story's own bias, which was supported by his prodigious industry, was just the reverse. The two men thus supplemented each other admirably. A tradition of some venerability represents Story as having said that Marshall was wont to remark: ”Now Story, that is the law; you find the precedents for it.” Whether true or not, the tale at least ill.u.s.trates the truth. Marshall owed to counsel a somewhat similar debt in the way of leading up to his decisions, for, as Story points out, ”he was solicitous to hear arguments and not to decide cases without them, nor did any judge ever profit more by them.” But in the field of Const.i.tutional Law, at least, Marshall used counsel's argument not so much to indicate what his own judicial goal ought to be as to discover the best route thereto-often, indeed, through the welcome stimulus which a clash of views gave to his reasoning powers.

* This was in the case of Ogden vs. Saunders, 12 Wheaton, 213 (1827).

Though the wealth of available legal talent at this period was impressively ill.u.s.trated in connection both with Chase's impeachment and with Burr's trial, yet on neither of these occasions appeared William Pinkney of Maryland, the attorney to whom Marshall acknowledged his greatest indebtedness, and who was universally acknowledged to be the leader of the American Bar from 1810 until his death twelve years later. Besides being a great lawyer, Pinkney was also a notable personality, as George Ticknor's sketch of him as he appeared before the Supreme Court in 1815 goes to prove:

”You must imagine, if you can, a man formed on nature's most liberal scale, who at the age of 50 is possessed with the ambition of being a pretty fellow, wears corsets to diminish his bulk, uses cosmetics, as he told Mrs. Gore, to smooth and soften a skin growing somewhat wrinkled and rigid with age, dresses in a style which would be thought foppish in a much younger man. You must imagine such a man standing before the gravest tribunal in the land, and engaged in causes of the deepest moment; but still apparently thinking how he can declaim like a practised rhetorician in the London c.o.c.kpit, which he used to frequent. Yet you must, at the same time, imagine his declamation to be chaste and precise in its language and cogent, logical and learned in its argument, free from the artifice and affectation of his manner, and in short, opposite to what you might fairly have expected from his first appearance and tones. And when you have compounded these inconsistencies in your imagination, and united qualities which on common occasions nature seems to hold asunder, you will, perhaps, begin to form some idea of what Mr. Pinkney is.”

Such was the man whom Marshall, Story, and Taney all considered the greatest lawyer who had ever appeared before the Supreme Court.

At the close of the War of 1812, Marshall, though he had decided many important questions of International Law, * nevertheless found himself only at the threshold of his real fame. Yet even thus early he had indicated his point of view. Thus in the case of the United States vs. Peters, * * which was decided in 1809, the question before the Court was whether a mandamus should issue to the United States District Judge of Pennsylvania ordering him to enforce, in the face of the opposition of the state Government, a decision handed down in a prize case more than thirty years before by the old Committee of Appeals of the Continental Congress. Marshall answered the question affirmatively, saying: ”If the legislatures of the several states may, at will, annul the judgments of the courts of the United States and destroy the rights acquired under those judgments, the Const.i.tution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.”

* Two famous decisions of Marshall's in this field are those in the Schooner Exchange vs. McFaddon et al, 7 Cranch, 116, and the case of the Nereide, 9 ib., 388.

* * 5 Cranch, 136.

Marshall's decision evoked a warm protest from the Pennsylvania Legislature and led to a proposal of amendment to the Const.i.tution providing ”an impartial tribunal” between the General Government and the States; and these expressions of dissent in turn brought the Virginia a.s.sembly to the defense of the Supreme Court.

”The commission to whom was referred the communication of the governor of Pennsylvania [reads the Virginia doc.u.ment]... are of the opinion that a tribunal is already provided by the Const.i.tution of the United States, to wit; the Supreme Court, more eminently qualified from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid in an enlightened and impartial manner than any other tribunal which could be created.

”The members of the Supreme Court are selected from those in the United States who are most celebrated for virtue and legal Learning.... The duties they have to perform lead them necessarily to the most enlarged and accurate acquaintance with the jurisdiction of the federal and several State courts together, and with the admirable symmetry of our government. The tenure of their offices enables them to p.r.o.nounce the sound and correct opinions they have formed, without fear, favor or partiality.”

Was it coincidence or something more that during Marshall's inc.u.mbency Virginia paid her one and only tribute to the impartiality of the Supreme Court while Burr's acquittal was still vivid in the minds of all? Or was it due to the fact that ”the Great Lama of the Little Mountain”-to use Marshall's disrespectful appellation for Jefferson-had not yet converted the Virginia Court of Appeals into the angry oracle of his own unrelenting hatred of the Chief Justice? Whatever the reason, within five years Virginia's att.i.tude had again s.h.i.+fted, and she had become once more what she had been in 1798-99, the rallying point of the forces of Confederation and State Rights.