[716] _Ib._ 132.

[717] _Ib._ 133-50.

[718] Marshall, V, 178-79. Thus Marshall, writing in 1806, states one of the central principles of the Const.i.tution as he interpreted it from the Bench years later in three of the most important of American judicial opinions--Fletcher _vs._ Peck, Sturgis _vs._ Crowninshield, and the Dartmouth College case. (See _infra_, chap. X; also vol. IV, chaps. IV and V, of this work.)

[719] Marshall, V, 198-210.

[720] _Ib._ 210-13. At this point Marshall is conspicuously, almost ostentatiously impartial, as between Jefferson and Hamilton. His description of the great radical is in terms of praise, almost laudation; the same is true of his a.n.a.lysis of Hamilton's work and character. But he gives free play to his admiration of John Adams.

(_Ib._ 219-20.)

[721] _Ib._ 230-32.

[722] Marshall, V, 241.

[723] _Ib._ 243-58.

[724] _Ib._ 271.

[725] "That system to which the American government afterwards inflexibly adhered, and to which much of the national prosperity is to be ascribed." (_Ib._ 408.)

[726] See vol. II, chaps. I to IV, of this work.

[727] Marshall, V, 685-709.

[728] _Ib._ 773.

[729] James Kent to Moss Kent, July 14, 1807, Kent MSS. Lib. Cong.

[730] Jefferson to Barlow, April 16, 1811, _Works_: Ford, XI, 205.

[731] Jefferson to Adams, June 15, 1813, _ib._ 296.

[732] Botta: _History of the War of the Independence of the United States of America_. This work, published in Italian in 1809, was not translated into English until 1820; but in 1812-13 a French edition was brought out, and that is probably the one Jefferson had read.

[733] Jefferson to Adams, Aug. 10, 1815, _Works_: Ford, XI, 485.

[734] Johnson: _Sketches of the Life and Correspondence of General Nathanael Greene_. This biography was even a greater failure than Marshall's _Washington_. During this period literary ventures by judges seem to have been doomed.

[735] Jefferson to Johnson, March 4, 1823, _Works_: Ford, XII, 277-78.

[736] _Works_: Ford, I, 165-67.

[737] _Ib._ 181-82.

[738] Plumer, March 11, 1808, "Diary," Plumer MSS. Lib. Cong.

[739] May, June, and August numbers, 1808, _Monthly Anthology and Boston Review_, V, 259, 322, 434. It appears from the minutes of the Anthology Society, publishers of this periodical, that they had a hard time in finding a person willing to review Marshall's five volumes. Three persons were asked to write the critique and declined. Finally, Mr.

Thatcher reluctantly agreed to do the work.

[740] Flint, in London _Athenaeum_ for 1835, 803.

[741] _North American Review_, XLVI, 483.

[742] _New York Evening Post_, as quoted in Allibone: _Dictionary of English Literature and British and American Authors_, II, 1227.

[743] _Edinburgh Review_, Oct. 1808, as quoted in Randall, II, footnote to 40.

[744] _Blackwood's Edinburgh Magazine_, XVII, 179.

[745] Marshall to Eliot, Sept. 20, 1809, MSS. of the Ma.s.s. Hist. Soc.

[746] Marshall to Murphey, Oct. 6, 1827, _Papers of Archibald D.

Murphey_: Hoyt, I, 365-66.

[747] Washington to Wayne, Nov. 26, 1816, Dreer MSS. _loc. cit._

[748] Marshall to Washington, Dec. 27, 1821, MS.

[749] So popular did this second edition become that, three years after Marshall's death, a little volume, _The Life of Washington_, was published for school-children. The publisher, James Crissy of Philadelphia, states that this small volume is "printed from the author's own ma.n.u.script," thus intimating that Marshall had prepared it.

(See Marshall, school ed.)

[750] Talbot _vs._ Seeman, United States _vs._ Schooner Peggy, Marbury _vs._ Madison, and Little _vs._ Barreme.

[751] The first three in above note.

CHAPTER VI

THE BURR CONSPIRACY

My views are such as every man of honor and every good citizen must approve. (Aaron Burr.)

His guilt is placed beyond question. (Jefferson.)

I never believed him to be a Fool. But he must be an Idiot or a Lunatic if he has really planned and attempted to execute such a Project as is imputed to him. But if his guilt is as clear as the Noonday Sun, the first Magistrate ought not to have p.r.o.nounced it so before a Jury had tryed him. (John Adams.)

On March 2, 1805, not long after the hour of noon, every Senator of the United States was in his seat in the Senate Chamber. All of them were emotionally affected--some were weeping.[752] Aaron Burr had just finished his brief extemporaneous address[753] of farewell. He had spoken with that grave earnestness so characteristic of him.[754] His remarks produced a curious impression upon the seasoned politicians and statesmen, over whose deliberations he had presided for four years. The explanation is found in Burr's personality quite as much as in the substance of his speech. From the unprecedented scene in the Senate Chamber when the Vice-President closed, a stranger would have judged that this gifted personage held in his hands the certainty of a great and brilliant career. Yet from the moment he left the Capital, Aaron Burr marched steadily toward his doom.

An understanding of the trial of Aaron Burr and of the proceedings against his agents, Bollmann and Swartwout, is impossible without a knowledge of the events that led up to them; while the opinions and rulings of Chief Justice Marshall in those memorable controversies are robbed of their color and much of their meaning when considered apart from the picturesque circ.u.mstances that produced them. This chapter, therefore, is an attempt to narrate and condense the facts of the Burr conspiracy in the light of present knowledge of them.

Although in a biography of John Marshall it seems a far cry to give so much s.p.a.ce to that episode, the import of the greatest criminal trial in American history is not to be fully grasped without a summary of the events preceding it. Moreover, the fact that in the Burr trial Marshall destroyed the law of "constructive treason" requires that the circ.u.mstances of the Burr adventure, as they appeared to Marshall, be here set forth.

A strong, brave man who, until then, had served his country well, Aaron Burr was in desperate plight when on the afternoon of March 2 he walked along the muddy Washington streets toward his lodging. He was a ruined man, financially, politically, and in reputation. Fourteen years of politics had destroyed his once extensive law practice and plunged him hopelessly into debt. The very men whose political victory he had secured had combined to drive him from the Republican Party.

The result of his encounter with Hamilton had been as fatal to his standing with the Federalists, who had but recently fawned upon him, as it was to the physical being of his antagonist. What now followed was as if Aaron Burr had been the predestined victim of some sinister astrology, so utterly did the destruction of his fortunes appear to be the purpose of a malign fate.