Sunday, December 28, 2008

Toussie Jammup? This is Nothing!

One author notes, President Thomas Jefferson “became the leading counsel in the prosecution of Aaron Burr.” Jefferson, for example, directed justices of the peace throughout the country to submit long lists of questions to anyone who had any knowledge of Burr. He appropriated almost twelve thousand dollars for an investigation and used the mail to produce a steady flow of directions for the prosecution to follow.

But that wasn't all. Jefferson also took the extraordinary step of sending a batch of blank pardons (nine individual warrants, signed and specified for the crime of treason) to the prosecutor, George Hay. The accompanying instructions read: “Blank pardons are sent on to be filled up at your discretion, if you should find a defect of evidence, and believe that this would supply it, avoiding to give them to gross offenders unless it be visible that the principal will otherwise escape.” The “principal” was, of course, Burr, but one of the blank pardons was certainly intended for Dr. Justus Erik Bollman, whom Jefferson and James Madison had interviewed in Washington a few month earlier.

Jefferson instructed Hey to call Bollman to testify and coached Hay specifically on how to conduct the questioning. Jefferson recommended that Hay read written statements Bollman had made in Washington out loud and methodically intersperse “didn’t you tell this to the President and Mr. Madison?” If Bollman played ignorant, or remained silent, Hay was instructed to wave the manuscript in open court and ask Bollman whether or not it contained his own handwriting. It was expected that the rattled witness would then gladly accept a presidential pardon and unload all of the testimony sufficient to convict Burr. But the Bollman-blank-presidential-pardon stunt actually played out quite differently.

Hay approached Bollman about a pardon before his official appearance in court. But the posecutor's letters to Jefferson complained that the pardon was neither accepted nor rejected. Hey griped that Bollman was “as unprincipled as his leader.”

In court, Hay interrupted the administration of the oath to Bollman and announced that Bollman had confessed Burr’s “plans, designs and views” to the Government and his testimony would be “extremely material.” Hay added that Bollman’s testimony might be incriminating so the President of the United States had provided a pardon. The prosecutor also informed the court that the pardon had already been offered to Hay, but was neither accepted nor refused. Hay then turned to Bollman and asked, “Will you accept this pardon?” Bollman responded, “No, I will not, sir.” The exasperated Hay suggested that Bollman be sent to the grand jury “with an intimation, that he has been pardoned.”

Luther Martin, counsel for Burr, caught on to Hay’s ploy immediately. Martin distinguished himself by drinking unusual quantities of brandy throughout the proceedings, but was not sloppy enough to allow the suggestion that Bollman to be described to the grand jury as “pardoned.” Bollman had committed no crime and had no need to be pardoned. Martin informed the court that Bollman had “always” intended to refuse Jefferson’s pardon, but delayed his decision “because he wished to have [the] opportunity of publicly rejecting it.”

Additional witnesses were sworn in while Hay and Martin continued to argue about the effect of Jefferson’s pardon. Along the way, Hay offered the pardon to Bollman again. Bollman repeated his rejection as Martin expressed his irritation with the prosecution. Hay rebuked Martin for not caring “what an awful condition” he was placing Bollman in, but Martin quipped that Bollman was a “man of too much honor” to cooperate for the possible benefits of a blank pardon.

Justice Marshall (yes, that one) announced that he would have to “take time to deliberate” about the effect of the presidential pardon. At that point, he could not “declare” whether Bollman was “really pardoned or not.” That is, Marshall questioned whether or not an individual could refuse a presidential pardon. It was a question that would hang around the Supreme Court, in various forms, for many, many years. Marshall, who also did us the disservie of comparing the president's pardon power to that of the King of England (U.S. v. Wilson) never answered the question.

1. Were Jefferson's blank pardons valid?
2. If so, when did they become valid? When Jefferson signed them? When they were trasmitted to Hey? When Hey wrote a name on one of them? When Hey announced one in Court? When Hey specifically offered one of them to someone?
3. Should Bollman have been allowed to refuse a pardon?

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