It was President Jefferson who directed and animated the prosecution. (Winfield Scott.)The President's popularity is unbounded and his will is that of the nation. (Joseph Nicholson.)The press from one end of the continent to the other has been enlisted to excite prejudices against Colonel Burr. (John Wickham.)Two thirds of our speeches have been addressed to the people. (George Hay.)It would be difficult or dangerous for a jury to acquit Burr, however innocent they might think him. (Marshall.)
It was President Jefferson who directed and animated the prosecution. (Winfield Scott.)
The President's popularity is unbounded and his will is that of the nation. (Joseph Nicholson.)
The press from one end of the continent to the other has been enlisted to excite prejudices against Colonel Burr. (John Wickham.)
Two thirds of our speeches have been addressed to the people. (George Hay.)
It would be difficult or dangerous for a jury to acquit Burr, however innocent they might think him. (Marshall.)
While Washington was still agitated by the President's Special Message, the long winter voyage of Bollmann and Swartwout ended at Baltimore, and Burr's dazed dispatch-bearers were brought by military guards to the National Capital. There, on the evening of January 22, they were thrown into the military prison at the Marine Barracks, and "guarded, night and day, by an officer & 15 soldiers of the Marine Corps."[917]
The ship bearing James Alexander had made a swift passage. On its arrival, friends of this prisoner applied to Joseph F. Nicholson, now United States Judge at Baltimore, for a writ of habeas corpus. Alexander was at once set free, there being not the slightest evidence to justify his detention.[918]
A week or two later the schooner Thatcher, on board which was the disconsolate and dumbfounded General Adair—Wilkinson's fourth prisoner to be sent to Jefferson—tied up to its dock at Baltimore and he was delivered "over to the commander of the fort at that city." But a passenger on the vessel, "a stranger ... of his own accord ... assured [Adair] he would procure a writ of Habeas Corpus for him." Adair also was "immediately liberated, ... there being no evidence against him."[919]
After the incarceration of Bollmann and Swartwout in Washington, attorneys were secured for them and an application was made to Judge William Cranch, United States Judge for the District of Columbia, for a writ of habeas corpus in their behalf, directed to Colonel Wharton, who was in command at Washington. Wharton brought the luckless prisoners into court and stated that "he held them under the orders of his superior officer. They were then taken upon a bench warrant charging them with treason which superseded the writ. A motion was made by the prisoners council ... that they be discharged. The Court required evidence of their probable guilt."[920]
Jefferson now took a hand in the prosecution. He considered Wilkinson's affidavit insufficient[921]to hold Bollmann and Swartwout, and, in order tostrengthen the case against them, secured from Eaton an affidavit stating the dire revelations which Eaton alleged Burr had made to him a year before.[922]Eaton's theatrical story was thus given to the press,[923]and not only fortified the public conviction that a conspiracy to destroy the Union had been under way, but also horrified the country by the account of Burr's intention to assassinate Jefferson.
The Attorney-General and the United States District Attorney, representing the Government, demanded that Bollmann and Swartwout be held; Charles Lee, Robert Goodloe Harper, and Francis S. Key, attorneys for the prisoners, insisted that they be released. Long was the argument and "vast" the crowd that heard it; "collected & firm" was the appearance of the accused men.[924]So universal wasthe curiosity, says John Quincy Adams, that the Senate was "scarcely able here to form a quorum ... and the House ... actually adjourned."[925]The court decided that Bollmann and Swartwout should be sent back to prison "for trial without bail or main-prize." For the first time in our history a National court divided on political grounds. Judge Cranch, a Federalist first appointed by President Adams,[926]thought that the prisoners should be discharged, but was overruled by his associates, Judges Nicholas Fitzhugh and Allen Bowie Duckett, Republicans appointed by Jefferson.[927]
But John Marshall and the Supreme Court had yet to be reckoned with. Counsel for the reimprisoned men at once applied to that tribunal for a writ of habeas corpus, and Marshall directed process to the jailer to show cause why the writ should not issue.
An extreme and violent step was now taken to end the proceedings in court. On Friday, January 23, 1807, the day after the President's Special Message denouncing Burr had been read in the Senate, Senator Giles, who, it should be repeated, was Jefferson's personal representative in that body, actually moved the appointment of a committee to draft a bill "to suspend the privilege of the writ of habeascorpus." Quickly Giles himself reported the measure, the Senate suspended its rules, and the bill was hurriedly passed, only Bayard of Delaware voting against it.[928]More astounding still, Giles recommended, and the Senate adopted, a special message to the House, stating the Senate's action "which they think expedient to communicate to you in confidence," and asking the popular branch of Congress to pass the Senate bill without delay.[929]
Immediately after the House convened on Monday, January 26,[930]Senator Samuel Smith of Maryland appeared on the floor and delivered this "confidential message," together with the Senate bill, which provided that "in all cases, where any person or persons, charged on oath with treason, misprision of treason, or other high crime or misdemeanor ... shall be arrested or imprisoned ... the privilege of the writ of habeas corpus shall be ... suspended, for and during the term of three months."[931]
The House was astounded. Party discipline was, for the moment, wrathfully repudiated. Mr. Philip R. Thompson of Virginia instantly moved that the "message and the bill received from the Senate ought not to be kept secret and that the doors be opened." Thompson's motion was adopted by 123 yeas to 3 nays.
Then came a motion to reject the bill, followed by a brief and almost one-sided debate, which was littlemore than the angry protest of the representatives of the people against the proposed overthrow of this last defense of liberty. William A. Burwell of Virginia asked whether there was any danger "to justify this suspension of this most important right of the citizen.... He could judge from what he had already seen that men, who are perfectly innocent, would be doomed to ... undergo the infamy of the dungeon."[932]"Never," exclaimed John W. Eppes of the same State, "under this Government, has personal liberty been held at the will of a single individual."[933]
On the other hand, Joseph B. Varnum of Massachusetts said that Burr's "insurrection" was the worst in all history.[934]James Sloan of New Jersey made a similar statement.[935]But the House promptly rejected the Senate bill by 113 yeas to 19 nays. The shameful attempt to prevent John Marshall from deciding whether Bollmann and Swartwout were entitled to the benefit of the most sacred writ known to the law was thereby defeated and the Chief Justice was left free to grant or reject it, as justice might require.
The order of the court of the District of Columbia was that Bollmann and Swartwout "be committed to prison of this court, to take their trial for treason against the United States, by levying war against them."[936]In the Supreme Court the prisoners and the Government were represented by the same counsel who had argued the case below, and Luther Martinalso appeared in behalf of the men whose long-continued and, as he believed, wholly illegal suffering had aroused the sympathies of that admirable lawyer.
The Supreme Court first decided that it had jurisdiction. The application for the writs of habeas corpus was, in effect, an appeal from the decision of the District Court. On this point Justice Johnson delivered a dissenting opinion, observing, as an aside, that the argument for the prisoners had shown "an unnecessary display of energy and pathos."[937]The affidavit of General Wilkinson and his version of the Burr letter, concerning which "the court had difficulty," were admitted by a vote of the majority of the Justices. At noon on the twenty-first day of February, 1807, Marshall delivered the opinion of the majority of the court upon the main question,[938]"whether the accused shall be discharged or held to trial."
The specific charge was that of "treason in levying war against the United States." This, declared Marshall, was the most serious offense of which any man can be accused: "As there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry. Whether this inquiry be directed to the fact or to the law, none can be more solemn, none moreimportant to the citizen or to the government; none can more affect the safety of both."
John Marshall by Richard N. BrookeJohn MarshallFrom a painting by Richard N. Brooke
In order that it should never be possible to extend treason "to offenses of minor importance," the Constitution "has given a rule on the subject both to the legislatures and the courts of America, which neither can be permitted to transcend." Marshall then read, with solemn impressiveness, these words from the Constitution of the United States: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."
To support the charge against Bollmann and Swartwout, said Marshall, "war must be actually levied.... To conspire to levy war, and actually to levy war, are distinct offenses. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed." It was not necessary for the commission of this crime that a man should actually "appear in arms against his country.... If a body of men be actually assembled 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 the action, and who are actually leagued in the general conspiracy, are to be considered as traitors."[939]This passage was soon to cause Marshall great embarrassment when he was confronted with it in the trial of Aaron Burr at Richmond.
Did this mean that men who go to the very edgeof legal boundaries—who stop just short of committing treason—must go scathless? By no means! Such offenses could be and must be provided for by statute. They were not, like treason, Constitutional crimes. "The framers of our Constitution ... must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation."
This was a direct rebuke to Jefferson. There can be no doubt that Marshall was referring to the recent attempt to deprive Bollmann and Swartwout of the protection of the courts by suspending the writ of habeas corpus. "It is, therefore, more safe," continued Marshall, "as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition should receive such punishment as the legislature in its wisdom may provide."
What do the words "levying war" mean? To complete that crime, Marshall repeated, "there must be an actual assemblage of men for the purpose of executing a treasonable design ... but no conspiracy for this object, no enlisting of men to effect it, would be an actual levying of war."[940]He thenapplied these principles to the testimony. First he took up the deposition of Eaton[941]which, he said, indicated that the invasion of Mexico "was the immediate object"[942]that Burr had in mind.
But, asked the Chief Justice, what had this to do with Bollmann and Swartwout? The prosecution connected the prisoners with the statements made in Eaton's deposition by offering the affidavit of General Wilkinson, which included his version of Burr's celebrated letter. Marshall then overruled the "great and serious objections made" to the admission of Wilkinson's affidavit. One of these objections was to that part which purported to set out the Wilkinson translation of the Burr cipher, the original letter not having been presented. Marshall announced that "a division of opinion has taken place in the court," two of the Judges believing such testimony totally inadmissible and two others holding that it was proper to consider it "at this incipient stage of the prosecution."
Thereupon Marshall analyzed Wilkinson's version of Burr's confidential cipher dispatch.[943]It was so vague, said the Chief Justice, that it "furnishes no distinct view of the design of the writer." But the "coöperation" which Burr stated had been secured "points strongly to some expedition against the territories of Spain."
Marshall then quoted these words of Burr's famous message: "'Burr's plan of operations is to move down rapidly from the falls on the 15th of November, with the first 500 or 1,000 men in the light boats now constructing for that purpose, to be at Natchez between the 5th and 15th of December, there to meet Wilkinson; then to determine whether it will be expedient in the first instance to seize on, or to pass by, Baton Rouge. The people of the country to which we are going are prepared to receive us. Their agents now with Burr say that if we will protect their religion, and will not subject them to a foreign power, in three weeks all will be settled.'"
This language was, said Marshall, "rather more explicit." But "there is no expression in these sentences which would justify a suspicion that any territory of the United States was the object of the expedition. For what purpose seize on Baton Rouge? Why engage Spain against this enterprise, if it was designed against the United States?"[944]
Burr's statement that "the people of the country to which we are going are prepared to receive us," was, said Marshall, "peculiarly appropriate to a foreign country." And what was the meaning of the statement: "Their agents now with Burr say, that if we will protect their religion, and will not subject them to a foreign power, in three weeks all will be settled"? It was not probable that this referred to American citizens; but it perfectly fitted the Mexicans. "There certainly is not in the letter delivered to General Wilkinson ... one syllable which has anecessary or a natural reference to an enterprise against the territory of the United States."
According to Wilkinson's affidavit, Swartwout knew the contents of the dispatch he was carrying; Wilkinson had deposed that Burr's messenger had frankly said so. Without stating that, in his long journey from New York through the Western States and Territories in quest of Wilkinson, he had "performed on his route any act whatever which was connected with the enterprise," Swartwout had declared "their object to be 'to carry an expedition to the Mexican provinces.'"[945]This, said Marshall, was "explanatory of the letter of Col. Burr, if the expressions of that letter could be thought ambiguous."
But Wilkinson declared in his affidavit that Swartwout had also told him that "this territory would be revolutionized where the people were ready to join them, and that there would be some seizing, he supposed at New Orleans."[946]If this meant thatthe Government in any American territory was to be revolutionized by force, "although merely as a ... means of executing some greater projects, the design was unquestionably treasonable," said Marshall; "and any assemblage of men for that purpose would amount to a levying of war." It was, then, of first importance to discover the true meaning of the youthful and indiscreet messenger.
For the third time the court divided. "Some of the judges," Marshall explained, suppose that these words of Swartwout "refer to the territory against which the expedition was intended; others to that in which the conversation was held. Some consider the words, if even applicable to a territory of the United States, as alluding to a revolution to be effected by the people, rather than by the party conducted by Col. Burr."
Swartwout's statement, as given in Wilkinson's affidavit, that Burr was assembling thousands of armed men to attack Mexico, did not prove that Burr had gathered an army to make war on the United States.[947]If the latter were Burr's purpose, it was not necessary that the entire host should have met at one spot; if detachments had actually formed and were marching to the place of rendezvous, treason had been committed. Following his tedious habit of repeating over and over again, often in identical language, statements already clearly made, Marshall for the fourth time asserted that there must be "unequivocal evidence" of "an actual assemblage."
The mere fact that Burr "was enlisting men in his service ... would not amount to levying war." That Swartwout meant only this, said Marshall, was "sufficiently apparent." If seven thousand men had actually come together in one body, every one would know about it; and surely, observed Marshall, "some evidence of such an assembling would have been laid before the court."
Burr's intention to do certain "seizing at New Orleans" did not amount to levying war from anything that could be inferred from Swartwout's statement. It only "indicated a design to rob." Having thus examined all the testimony before the court, Marshall announced the opinion of the majority of the Justices that there was not "sufficient evidence of his [Swartwout's] levying war against the United States to justify his commitment on the charge of treason."[948]
The testimony against Bollmann was, if possible, still weaker. There was, indeed, "no evidence to support a charge of treason" against him. Whoever believed the assertions in Wilkinson's affidavit could not doubt that both Bollmann and Swartwout "were engaged in a most culpable enterprise against the dominions of a power at peace with the United States"; but it was apparent that "no part of this crime was committed in the District of Columbia." They could not, therefore, be tried in that District.
Upon that point the court was at last unanimous. The accused men could have been tried in New Orleans—"there existed a tribunal in that city,"sarcastically observed Marshall; but to say that citizens might be seized by military power in the jurisdiction where the alleged crime was committed and thereafter tried "in any place which the general might select, and to which he might direct them to be carried," was not to be thought of—such a thing "would be extremely dangerous." So the long-suffering Bollmann and Swartwout were discharged.[949]
Thus, by three different courts, five of the "conspirators" had successively been released. In the case of Ogden, there was no proof; of Alexander, no proof; of Adair, no proof; of Bollmann and Swartwout, no proof. And the Judges had dared to set free the accused men—had refused to consign them to prison, despite public opinion and the desire of the Administration. Could anything be more undemocratic, more reprehensible? The Supreme Court, especially, should be rebuked.
On learning of that tribunal's action, Giles adjourned the meeting of his committee on the treason bill in order to secure immediately a copy of Marshall's opinion. In a true Virginian rage, Giles threatened to offer an amendment to the Constitution "taking awayalljurisdiction of the Supreme Court in criminal cases." There was talk of impeaching every occupant of the Supreme Bench.[950]
More news had now reached Washington concerning the outrages committed at New Orleans; and on the day that the attorneys for Bollmann and Swartwout applied to the Supreme Court for writs of habeas corpus, James M. Broom of Delaware rose in the House, and introduced a resolution "to make further provision for securing the privilege of the writ of habeas corpus to persons in custody under or by color of the authority of the United States."[951]While the cases were being argued in the Supreme Court and the divided Judges were wrangling over the disputed points, a violent debate sprang up in the House over Broom's resolution. "If, upon every alarm of conspiracy," said Broom, "our rights of personal liberty are to be entrusted to the keeping of a military commander, we may prepare to take our leave of them forever."[952]All day the debate continued; on the next day, February 18, while Marshall was delivering his opinion that the Supreme Court had jurisdiction of the application of Bollmann and Swartwout, the controversy in the House was renewed.
James Elliot of Vermont said that "most of the privileges intended to be secured" by the Fourth, Fifth, and Sixth Amendments[953]"have recently beendenied ... at the point of the bayonet, and under circumstances of peculiar violence." He read Wilkinson's impertinent return to the Orleans County Court. This, said Elliot, was "not obedience to the laws ... but ... defiance.... What necessity could exist for seizing one or two wandering conspirators, and transporting them fifteen hundred or two thousand miles from the Constitutional scene of inquisition and trial, to place them particularly under the eye of the National Government"?[954]Not only was the swish of the party whip heard in the House, he asserted, but members who would not desert the fundamentals of liberty must "be prepared for the insinuation that we countenance treason, and sympathize with traitors."[955]
The shrill voice of John Randolph was heard. Almost his first sentence was a blow at Jefferson. If the President and his party "ever quit the ground of trial by jury, the liberty of the press, and the subordination of the military to the civil authority, they must expect that their enemies will perceive the desertion and avail themselves of the advantage."[956]Randolph assailed the recent attempt to suspend the writ of habeas corpus which, he said, "was intended ... to cover with a mantle the most daring usurpation which ever did, will, or can happen, in this or any country. There was exactly as much right to shoot the persons in question as to do what has been done."[957]The Declaration of Independence had assigned wrongs of precisely the kind suffered by Bollmann and Swartwout "as one of the grievances imposed by the British Government on the colonies. Now, it is done under the Constitution," exclaimed Randolph, "and under a republican administration, and men are transported without the color of law, nearly as far as across the Atlantic."[958]
Again and again angry speakers denounced the strenuous attempts of the Administration's supporters to influence Republican votes on partisan grounds. Only by the most desperate efforts was Jefferson saved from the rebuke and humiliation of the passage of the resolution. But his escape was narrow. Indefinite postponement was voted by the dangerous majority of 2 out of a total of 118 members.[959]
While Burr's messengers were on the high seas, prisoners of war, and Wilkinson at New Orleans was saving the Republic by rending its laws, Burr himself, ignorant of all, was placidly making his way down the Ohio and Mississippi with his nine boats and sixty adventurers, mostly youths, many only boys. He had left Jackson at Nashville on December 22, and floating down the Cumberland in two unarmed boats, had joined the remainder of the little expedition.
He then met for the first time the young adventurers whom Blennerhassett, Comfort Tyler of Syracuse, New York, and Davis Floyd of the tiny settlement of New Albany, Indiana Territory, had induced to join the expedition. On a cold, rainy December morning they were drawn up in a semi-circle on a little island at the mouth of the Cumberland River, and Burr was introduced to each of them. Greeting them with his customary reserved friendliness, he told them that the objects of the expedition not already disclosed to them would be revealed at a more opportune time.[960]
Such was the second "overt act" of the gathering of an armed host to "levy war" on the United States for which Jefferson later fastened the charge of treason upon Aaron Burr.
As it floated down the Ohio and Mississippi, the little flotilla[961]stopped at the forts upon the river bluffs, and the officers proffered Burr all the courtesies at their command. Seven days after Burr had left Fort Massac, Captain Bissel, in answer to a letter of inquiry from Andrew Jackson, assured him that "there has nothing the least alarming appeared"; Burr had passed with a few boats "having nothing on board that would even suffer a conjecture, more than a man bound to market."[962]JohnMurrell of Tennessee, sent on a secret mission of investigation, reported to Jackson that, pursuant to instructions, he had closely followed and examined Burr's movements on the Cumberland; that he had heard reports that Burr "had gone down the river with one thousand armed men"; but Murrell had found the fact to be that there were but ten boats with only "sixty men on board," and "no appearance of arms."[963]
During the week when John Randolph, in the House, was demanding information of the President, and Wilkinson, in New Orleans, was making his second series of arrests, Burr, with his little group of boats and small company of men—totally unequipped for anything but the settlement of the Washita lands, and poorly supplied even for that—serenely drew up to the landing at the small post of Bayou Pierre in the Territory of Mississippi. He was still uninformed of what was going forward at New Orleans and at Washington—still unconscious of the storm of hatred and denunciation that had been blown up against him.
At the little settlement, Burr learned for the first time of the fate prepared for him. Bloody and violent were the measures he then adopted! He wrote a letter to Cowles Mead, Acting Governor of the Territory, stating that rumors he had just heard were untrue; that "his object is agriculture and his boats are the vehicles of immigration." But he "hinted at resistance to any attempt to coerce him."[964]
What followed was related by Mead himself. As directed by the War Department, he had prorogued the Legislature, put the Territory in a state of defense, and called out the militia. When Burr's letter came, Mead ordered these frontier soldiers to "rendezvous at certain points.... With the promptitude of Spartans, our fellow-citizens shouldered their firelocks, and in twenty-four hours I had the honor to review three hundred and seventy-five men at Natches, prepared to defend their country." Mead sent two aides to Burr, "who tendered his respects to the civil authority." The Acting Governor himself then saw Burr, whereupon the desperado actually "offered to surrender himself to the civil authority of the Territory, and to suffer his boats to be searched." This was done by "four gentlemen of unquestionable respectability, with a detachment of thirty men." Burr readily went into court and awaited trial.
"Thus, sir," concludes Governor Mead, "this mighty alarm, with all its exaggeration, has eventuated in nine boats and one hundred men,[965]and the major part of these are boys, or young men just from school," wholly unaware of Burr's evil designs.[966]
The Legislature of the Territory of Orleans had just convened. Governor Claiborne recommended that a law be passed suspending the writ of habeas corpus. Behind closed doors the Representativeswere harangued by Wilkinson on the subject of the great conspiracy. All the old horrors were again paraded to induce the legislators to support Wilkinson in his lawless acts. Instead, that body denied the existence of treason in Louisiana, expressed alarm at the "late privation" of the rights of American citizens, and determined to investigate the "measures and motives" of Wilkinson. A memorial to Congress was adopted, denouncing "the acts of high-handed military power ... too notorious to be denied, too illegal to be justified, too wanton to be excused," by which "the temple of justice" had been "sacrilegiously rifled."[967]
In Mississippi, Burr calmly awaited his trial before the United States Court of that Territory. Bail in the sum of five thousand dollars had been furnished by Colonel Benijah Osmun and Lyman Harding, two Revolutionary comrades of Burr, who years before had emigrated to Mississippi and developed into wealthy planters. Colonel Osmun invited Burr to be his guest. Having seen the ogre and talked with him, the people of the neighborhood became Burr's enthusiastic friends.
Soon the grand jury was impaneled to investigate Burr's "crimes" and indict him for them if a true bill could be found. This body outdid the performance of the Kentucky grand jury nine weeks earlier. The grand jurors asserted that, after examining theevidence, they were "of the opinion that Aaron Burr has not been guilty of any crime or misdemeanor against the laws of the United States or of this Territory or given any just alarm or inquietude to the good people of this Territory." Worse still followed—the grand jury formally presented as "a grievance" the march of the militia against Burr, since there had been no prior resistance by him to the civil authorities. Nor did the grand jurors stop there. They also presented "as a grievance, destructive of personal liberty," Wilkinson's military outrages in New Orleans.[968]
When the grand jury was dismissed, Burr asked to be discharged and his sureties released from his bond. The judge was Thomas Rodney, the father of Cæsar A. Rodney whom Jefferson soon afterward appointed Attorney-General. Judge Rodney out-Wilkinsoned Wilkinson; he denied Burr's request and ordered him to renew his bond or go to jail. This was done despite the facts that the grand jury had refused to indict Burr and that there was no legal charge whatever before the court.
Wilkinson was frantic lest Burr escape him. Every effort was made to seize him; officers in disguise were sent to capture him,[969]and men "armed with Dirks & Pistolls" were dispatched to assassinate him.[970]Burr consulted Colonel Osmun and otherfriends, who advised him to keep out of sight for a time. So he went into hiding, but wrote the Governor that he would again come before the court when he could be assured of being dealt with legally.
Thereupon the bond of five thousand dollars, which Judge Rodney had compelled Burr to give, was declared forfeited and a reward of two thousand dollars was offered for his apprehension. From his place of retreat the harried man protested by letter. The Governor would not relent. Wilkinson was raging in New Orleans. Illegal imprisonment, probably death, was certain for Burr if he should be taken. His friends counseled flight, and he acted on their judgment.[971]
But he would not go until he had seen his disconsolate followers once more. Stealthily visiting his now unguarded flotilla, he told his men to take for themselves the boats and provisions, and, if they desired, to proceed to the Washita lands, settle there, and keep as much as they wanted. He had stood his trial, he said, and had been acquitted; but now he was to be taken by unlawful violence, and the only thing left for him to do was to "flee from oppression."[972]
Colonel Osmun gave him the best horse in his stables. Clad "in an old blanket-coat begirt with a leathern strap, to which a tin cup was suspended on the left and a scalping knife on the right," Aaron Burr rode away into the wilderness.
At ten o'clock of a rainy night, on the very day when Marshall delivered his first opinion in the caseof Bollmann and Swartwout, Burr was recognized at a forest tavern in Washington County,[973]where he had stopped to inquire the way to the house of Colonel Hinson, whom he had met at Natchez on his first Western journey and who had invited Burr to be his guest if he ever came to that part of the Territory. "Major" Nicholas Perkins, a burly backwoods lawyer from Tennessee, penetrated the disguise,[974]because of Burr's fine eyes and erect carriage.
Perkins hurried to the cabin of Theodore Brightwell, sheriff of the county, and the two men rode after Burr, overtaking him at the residence of Colonel Hinson, who was away from home and whose wife had prepared supper for the wanderer. Brightwell went inside while Perkins remained in the downpour watching the house from the bushes.
Burr so won the hearts of both hostess and sheriff that, instead of arresting him, the officer proposed to guide the escaping criminal on his way the next morning.[975]The drenched and shivering Perkins, feeling that all was not right inside the cabin, hastened by horse and canoe to Fort Stoddert and told Captain Edward P. Gaines of Burr's whereabouts. With a file of soldiers the captain and the lawyer set off to find and take the fugitive. They soon met him with the sheriff, who was telling Burr the roads to follow.
Exclusively upon the authority of Jefferson's Proclamation, Burr was arrested and confined in the fort. With quiet dignity, the "traitor" merely protested and asked to be delivered to the civil courts. His arrest was wholly illegal, he correctly said; let a judge and jury again pass on his conduct. But seizure and incarceration by military force, utterly without warrant of law, were a denial of fundamental rights—rights which could not be refused to the poorest citizen or the most abandoned criminal.[976]
Two weeks passed before Burr was sent northward. During this period all within the stockades became his friends. The brother of Captain Gaines fell ill and Burr, who among other accomplishments knew much about medicine, treated the sick man and cheered him with gay conversation. The soldiers liked Burr; the officers liked him; their wives liked him. Everybody yielded to his strange attractiveness.
Two weeks after Marshall discharged Bollmann and Swartwout at Washington, Burr was delivered by Captain Gaines to a guard of nine men organized by Perkins; and, preceded and followed by them, he began the thousand-mile journey to Washington. For days torrential rains fell; streams were swollen; the soil was a quagmire. For hundreds of miles the only road was an Indian trail; wolves filled the forest; savage Indians were all about.[977]At night theparty, drenched and chilled, slept on the sodden earth. Burr never complained.
After ten days the first white settlements appeared. In two days more, South Carolina was reached. The cautious Perkins avoided the larger settlements, for Burr was popular in that State and his captor would run no risks of a rescue. As the prisoner and his convoy were passing through a village, a number of men were standing before a tavern. Burr suddenly threw himself from his horse and cried: "I am Aaron Burr, under military arrest, and claim the protection of the civil authorities."
Before any one could move, Perkins sprang to Burr's side, a pistol in each hand, and ordered him to remount. Burr refused; and the gigantic frontier lawyer lifted the slight, delicate prisoner in his hands, threw him into his saddle, and the sorry cavalcade rode on, guards now on either side, as well as before and behind their charge. Then, for the first and last time in his life, Burr lost his composure, but only for a moment; tears filled his eyes, but instantly recovering his self-possession, he finished the remainder of that harrowing trip as courteous, dignified, and serene as ever.[978]
At Fredericksburg, Virginia, Perkins received orders from the Government to take his prisoner to Richmond instead of to Washington. John Randolph describes the cavalcade: "Colonel Burr ... passed by my door the day before yesterday under a strong guard.... To guard against enquiry asmuch as possible he was accoutred in a shabby suit of homespun with an old white hat flopped over his face, the dress in which he was apprehended."[979]
In such fashion, when the candles were being lighted on the evening of Thursday, March 26, 1807, Aaron Burr was brought into the Virginia Capital, where, before a judge who could be neither frightened nor cajoled, he was to make final answer to the charge of treason.
Burr remained under military guard until the arrival of Marshall at Richmond. The Chief Justice at once wrote out,[980]signed, and issued a warrant by virtue of which the desperate yet composed prisoner was at last surrendered to the civil authorities, before whom he had so long demanded to be taken.
During the noon hour on Monday, March 30, Marshall went to "a retired room" in the Eagle Tavern. In this hostelry Burr was confined. Curious citizens thronged the big public room of the inn and were "awfully silent and attentive" as the pale and worn conspirator was taken by Major Joseph Scott, the United States Marshal, and two deputies through the quiet but hostile assemblage to the apartment where the Chief Justice awaited him. To the disappointment of the crowd, the door was closed and Aaron Burr stood before John Marshall.[981]
George Hay, the United States District Attorney, had objected to holding even the beginning of the preliminary hearing at the hotel, because the greatnumber of eager and antagonistic spectators could not be present. Upon the sentiment of these, as will be seen, Hay relied, even more than upon the law and the evidence, to secure the conviction of the accused man. He yielded, however, on condition that, if any discussion arose among counsel, the proceedings should be adjourned to the Capitol.[982]
It would be difficult to imagine two men more unlike in appearance, manner, attire, and characteristics, than the prisoner and the judge who now confronted each other; yet, in many respects, they were similar. Marshall, towering, ramshackle, bony, loose-jointed, negligently dressed, simple and unconventional of manner; Burr, undersized and erect, his apparel scrupulously neat,[983]his deportment that of the most punctilious society. Outwardly, the two men resembled each other in only a single particular: their eyes were as much alike as their persons were in contrast.[984]Burr was fifty years of age, and Marshall was less than six months older.
Both were calm, admirably poised and self-possessed; and from the personality of each radiated a strange power of which no one who came near either of them could fail to be conscious. Intellectually, also, there were points of remarkable similarity. Clear, cold logic was the outstanding element of their minds.
The two men had the gift of lucid statement, although Marshall indulged in tiresome repetition while Burr never restated a point or an argument. Neither ever employed imagery or used any kind of rhetorical display. Notwithstanding the rigidity of their logic, both were subtle and astute; it was all but impossible to catch either off his guard. But Marshall gave the impression of great frankness; while about every act and word of Burr there was the air of mystery. The feeling which Burr's actions inspired, that he was obreptitious, was overcome by the fascination of the man when one was under his personal influence; yet the impression of indirectness and duplicity which he caused generally, together with his indifference to slander and calumny,[985]made it possible for his enemies, before his Western venture, to build up about his name a structure of public suspicion, and even hatred, wholly unjustified by the facts.
The United States District Attorney laid before Marshall the record in the case of Bollmann and Swartwout in the Supreme Court, and Perkins proudly described how he had captured Burr and brought him to Richmond. Hay promptly moved to commit the accused man to jail on the charges of treason and misdemeanor. The attorneys on both sides agreed that on this motion there must be argument. Marshall admitted Burr to bail in the sum of five thousand dollars for his appearance the next day at the court-room in the Capitol.
When Marshall opened court the following morning, the room was crowded with spectators, while hundreds could not find admittance. Hay asked that the court adjourn to the House of Delegates, in order that as many as possible of the throng might hear the proceedings. Marshall complied, and the eager multitude hurried pell-mell to the big ugly hall, where thenceforth court was held throughout the tedious, exasperating months of this historic legal conflict.
Hay began the argument. Burr's cipher letter to Wilkinson proved that he was on his way to attack Mexico at the time his villainy was thwarted by the patriotic measures of the true-hearted commander of the American Army. Hay insisted that Burr had intended to take New Orleans and "make it the capital of his empire." The zealous young District Attorney "went minutely into ... the evidence." The prisoner's stealthy "flight from justice" showed that he was guilty.
John Wickham, one of Burr's counsel, answered Hay. There was no testimony to show an overt act of treason. The alleged Mexican project was not only "innocent, but meritorious"; for everybody knew that we were "in an intermediate state between war and peace" with Spain. Let Marshall recall Jefferson's Message to Congress on that point. If war did not break out, Burr's expedition was perfectly suitable to another and a wholly peaceful enterprise, and one which the President himself had "recommended"—namely, "strong settlements beyond the Mississippi."[986]
Burr himself addressed the court, not, he said, "to remedy any omission of his counsel, who had done great justice to the subject," but "to repel some observations of a personal nature." Treason meant deeds, yet he was being persecuted on "mere conjecture." The whole country had been unjustly aroused against him. Wilkinson had frightened the President, and Jefferson, in turn, had alarmed the people.
Had he acted like a guilty man, he asked? Briefly and modestly he told of his conduct before the courts and grand juries in Kentucky and Mississippi, and the result of those investigations. The people among whom he journeyed saw nothing hostile or treasonable in his expedition.
His "flight"? That had occurred only when he was denied the protection of the laws and when armed men, under illegal orders of an autocratic military authority, were seeking to seize him violently. Then, and only then, acting upon the advice of friends and upon his own judgment, had he "abandoned a country where the laws ceased to be the sovereign power." Why had the guards who brought him from Alabama to Richmond "avoided every magistrate on the way"? Why had he been refused the use of pen, ink, and paper—denied even the privilege of writing to his daughter? It was true that when, in South Carolina, the soldiers chanced upon three civilians, he did indeed "demand the interposition of the civil authority." Was that criminal? Was it not his right to seek to be delivered from "military despotism, from the tyrannyof a military escort," and to be subjected only to "the operation of the laws of his country"?[987]
On Wednesday, April 1, Marshall delivered the second of that series of opinions which established the boundaries of the American law of treason and rendered the trial of Aaron Burr as notable for the number and the importance of decisions made from the bench during the progress of it, as it was famous among legal duels in the learning, power, and eloquence of counsel, in the influences brought to bear upon court and jury, and in the dramatic setting and the picturesque incidents of the proceedings.
Marshall had carefully written his opinion. At the close of court on the preceding day, he had announced that he would do this in order "to prevent any misrepresentations of expressions that might fall on him." He had also assured Hay that, in case he decided to commit Burr, the District Attorney should be heard at any length he desired on the question of bail.
Thus, at the very beginning, Marshall showed that patience, consideration, and prudence so characteristic of him, and so indispensable to the conduct of this trial, if dangerous collisions with the prevailing mob spirit were to be avoided. He had in mind, too, the haughty and peremptory conduct of Chase, Addison, and other judges which had given Jefferson his excuse for attacking the Judiciary, and which had all but placed that branch of the Government in the absolute control of that great practical genius of political manipulation. By the gentlenessof his voice and manner, Marshall lessened the excuse which Jefferson was eagerly seeking in order again to inflame the passions of the people against the Judiciary.
Proof strong enough to convict "on a trial in chief," or even to convince the judge himself of Burr's guilt, was not, said Marshall, necessary to justify the court in holding him for the action of the grand jury; but there must be enough testimony "to furnish good reason to believe" that Burr had actually committed the crimes with which he stood charged.
Marshall quoted Blackstone to the effect that a prisoner could be discharged only when it appeared that the suspicion against him was "wholly groundless," but this did not mean that "the hand of malignity may grasp any individual against whom its hate may be directed or whom it may capriciously seize, charge him with some secret crime and put him on the proof of his innocence."
Precisely that "hand of malignity," however, Burr was feeling by orders of Jefferson. The partisans of the President instantly took alarm at this passage of Marshall's opinion. Here was this insolent Federalist Chief Justice, at the very outset of the investigation, presuming to reflect upon their idol. Such was the indignant comment that ran among the Republicans who packed the hall; and reflect upon the President, Marshall certainly did, and intended to do.
The softly spoken but biting words of the Chief Justice were unnecessary to the decision of thequestion before him; they accurately described the conduct of the Administration, and they could have been uttered only as a rebuke to Jefferson or as an attempt to cool the public rage that the President had aroused. Perhaps both motives inspired Marshall's pen when he wrote that statesmanlike sentence.[988]
On the whole, said Marshall, probable cause to suspect Burr guilty of an attempt to attack the Spanish possessions appeared from Wilkinson's affidavit; but the charge of treason was quite another matter. "As this is the most atrocious offence which can be committed against the political body, so it is the charge which is most capable of being employed as the instrument of those malignant and vindictive passions which may rage in the bosoms of contending parties struggling for power." Treason is the only crime specifically mentioned in the Constitution—the definition of all others is left to Congress. But the Constitution itself carefully and plainly describes treason and prescribes just how it must be proved.
Did the testimony show probable grounds for believing that Burr had committed treason? Marshall analyzed the affidavits of Eaton and Wilkinson, which constituted all of the "evidence" against Burr; and although the whole matter had been examined by the Supreme Court in the case of Bollmann and Swartwout, he nevertheless went over the same ground again. No impatience, no hasty or autocratic action, no rudeness of manner, no harshness of speech on his part should give politicians a weapon with which once more to strike at judges and courts.
Where, asked Marshall, was the evidence that Burr had assembled an army to levy war on the United States? Not before the court, certainly. Mere "suspicion" was not to be ignored when means of proving the suspected facts were not yet secured; but where the truth could easily have been established, if it existed, and yet no proof of it had been brought forward, everybody "must admit that the ministers of justice at least ought not officially to entertain" unsupported conjectures or assertions.
"The fact to be proved ... is an act of public notoriety. It must exist in the view of the world, or it cannot exist at all.... Months have elapsed since the fact did occur, if it ever occurred. More than five weeks have elapsed since the ... supreme court has declared the necessity of proving the fact, if it exists. Why is it not proved?" It is, said Marshall, the duty of the Executive Department to prosecute crimes. "It would be easy" for the Government "to procure affidavits" that Burr had assembled troops five months ago. Certainly the court "ought not to believe that there had been any remissness" on the part of the Administration; and since no evidence had been presented that Burr had gathered soldiers, "the suspicion, which in the first instancemight have been created, ought not to be continued, unless this want of proof can be in some manner accounted for."
Marshall would, therefore, commit Burr for high misdemeanor, but not for treason, and must, of consequence, admit the prisoner to bail. The Chief Justice suggested the sum of ten thousand dollars as being "about right."[989]Hay protested that the amount was too small. Burr "is here among strangers," replied Wickham. He has fewer acquaintances in Richmond than anywhere in the country. To be sure, two humane men had saved the prisoner "from the horrors of the dungeon" when he arrived; but the first bail was only for two days, while the present bail was for an indefinite period. "Besides," asserted Wickham, "I have heard several gentlemen of great respectability, who did not doubt that colonel Burr would keep his recognisance, express an unwillingness to appear as bail for him, lest it might be supposed they were enemies to their country."[990]
Thus were cleverly brought into public and official view the conditions under which this trial, so vital to American liberty, was to be held. Burr was a "traitor," asserted Jefferson. "Burr a traitor!" echoed the general voice. That all who befriended Burr were, therefore, also "traitors at heart," was the conclusion of popular logic. Who dared brave the wrath of that blind and merciless god, Public Prejudice? From the very beginning the prosecution invoked the power of this avenging and remorseless deity, while the defense sought to break that despotic spell and arouse the spirit of opposition to the tyranny of it. These facts explain the legal strategy of the famous controversy—a controversy that continued throughout the sweltering months of the summer and far into the autumn of 1807.
Hay declared that he had been "well informed that Colonel Burr could give bail in the sum of one hundred thousand dollars." Gravely Burr answered that there was serious doubt whether bail in any sum could be procured; "gentlemen are unwilling to expose themselves to animadversions" which would be the result of their giving bail for him. He averred that he had no financial resources. "It is pretty well known that the government has ordered my property seized, and that the order has been executed." He had thus lost "upwards of forty thousand dollars," and his "credit had consequently been much impaired."[991]
Marshall, unmoved by the appeals of either side, fixed the bail at ten thousand dollars and adjourned court until three o'clock to enable Burr to procure sureties for that amount. At the appointed hour the prisoner came into court with five men of property who gave their bond for his appearance at the next term of the United States Circuit Court, to be held at Richmond on May 22.
For three precious weeks at least Aaron Burr was free. He made the best of his time, although hecould do little more than perfect the plans for his defense. His adored Theodosia was in alternate rage and despair, and Burr strove to cheer and steady her as best he might. Some of "your letters," he writes, "indicate a sort of stupor"; in others "you rise into phrenzy." He bids her come "back to reason.... Such things happen in all democratic governments." Consider the "vindictive and unrelenting persecution" of men of "virtue, ... independence and ... talents in Greece and Rome." Let Theodosia "amuse" herself by collecting instances of the kind and writing an essay on the subject "with reflections, comments and applications." The perusal of it, he says, will give him "great pleasure" if he gets it by the time court opens in May.[992]
Burr learned the names of those who were to compose the grand jury that was to investigate his misdeeds. Among them were "twenty democrats and four federalists," he informs his daughter. One of "the former is W. C. Nicholas my vindictive ... personal enemy—the most so that could be found in this state. The most indefatigable industry is used by the agents of government, and they have money at command without stint. If I were possessed of the same means, I could not only foil the prosecutors, but render them ridiculous and infamous. The democratic papers teem with abuse of me and my counsel, and even against the chief justice. Nothing is left undone or unsaid which can tend to prejudice the public mind, and produce a conviction without evidence. The machinations ofthis description which were used against Moreau in France were treated in this country with indignation. They are practiced against me in a still more impudent degree, not only with impunity, but with applause; and the authors and abettors suppose, with reason, that they are acquiring favour with the administration."[993]
Every word of this was true. The Republican press blazed with denunciation of "the traitor." The people, who had been led to believe that the destruction of their "liberties" had been the object at which Burr ultimately aimed, were intent on the death of their would-be despoiler. Republican politicians were nervously apprehensive lest, through Marshall's application of the law, Burr might escape and the Administration and the entire Republican Party thereby be convicted of persecuting an innocent man. They feared, even more, the effect on their political fortunes of being made ridiculous.
Giles was characteristically alert to the danger. Soon after Marshall had declined to commit Burr for treason and had released him under bail to appear on the charge of misdemeanor only, the Republican leader of the Senate, then in Virginia, wrote Jefferson of the situation.
The preliminary hearing of Burr had, Giles stated, greatly excited the people of Virginia and probably would "have the same effect in all parts of the United States." He urged the President to take "all measures necessary for effecting ... a full and fair judicial investigation." The enemies of the Administration had gone so far as to "suggest doubts" as to the "measures heretofore pursued in relation to Burr," and had dared to "intimate that the executive are not possessed of evidence to justify those measures"—or, if there was such evidence, that the prosecution had been "extremely delinquent in not producing it at the examination." Nay, more! "It is even said that General Wilkinson will not be ordered to attend the trial." That would never do; the absence of that militant patriot "would implicate the character of the administration, more than they can be apprised of."[994]
But Jefferson was sufficiently alarmed without any sounding of the tocsin by his Senatorial agent. "He had so frightened the country ... that to escape being overwhelmed by ridicule, he must get his prisoner convicted of the fell designs which he had publically attributed to him."[995]It is true that Jefferson did not believe Burr had committed treason;[996]but he had formally declared to Congress and the countrythat Burr's "guilt is placed beyond question," and, at any cost, he must now make good that charge.[997]
From the moment that he received the news of Marshall's decision to hold Burr for misdemeanor and to accept bail upon that charge, the prosecution of his former associate became Jefferson's ruling thought and purpose. It occupied his mind even more than the Nation's foreign affairs, which were then in the most dangerous state.[998]Champion though he was of equal rights for all men, yet any opposition to his personal or political desires or interests appeared to madden him.[999]A personal antagonism, once formed, became with Thomas Jefferson a public policy.
He could see neither merit nor honesty in any act or word that appeared to him to favor Burr. Anybody who intimated doubt of his guilt did so, in Jefferson's opinion, for partisan or equally unworthy reasons. "The fact is that the Federalists make Burr's cause their own, and exert their whole influence to shield him," he asserted two days after Marshall had admitted Burr to bail.[1000]His hatred of the National Judiciary was rekindled if, indeed, its fires ever had died down. "It is unfortunate that federalism is still predominant in our judiciary department, which is consequently in opposition to the legislative & Executive branches & is able tobaffle their measures often," he averred at the same time, and with reference to Marshall's rulings thus far in the Burr case.
He pours out his feelings with true Jeffersonian bitterness and passion in his answer to Giles's letter. No wonder, he writes, that "anxiety and doubt" had arisen "in the public mind in the present defective state of the proof." This tendency had "been sedulously encouraged by the tricks of the judges to force trials before it is possible to collect the evidence dispersed through a line of two thousand miles from Maine to Orleans."
The Federalists too were helping Burr! These miscreants were "mortified only that he did not separate the Union and overturn the government." The truth was, declares Jefferson, that the Federalists would have joined Burr in order to establish "their favorite monarchy" and rid themselves of "this hated republic," if only the traitor had had "a little dawn of success." Consider the inconsistent attitude of these Federalists. Their first "complaint was the supine inattention of the administration to a treason stalking through the land in the open light of day; the present one, that they [the Administration] have crushed it before it was ripe for execution, so that no overt acts can be proved."
Jefferson confides to Giles that the Government may not be able to establish the commission of overt acts; in fact, he says, "we do not know of a certainty yet what will be proved." But the Administration is already doing its very best: "We have set on foot an inquiry through the whole of thecountry which has been the scene of these transactions to be able to prove to the courts, if they will give time, or to the public by way of communication to Congress, what the real facts have been"—this three months after Jefferson had asserted, in his Special Message on the conspiracy, that Burr's "guilt is placed beyond question."