FOOTNOTES:

In this universal quest for "the facts," the Government had no help from the National courts, complains the President: "Aided by no process or facilities from Federal Courts,[1001]but frowned on by their new-born zeal for the liberty of those whom we would not permit to overthrow the liberties of their country, we can expect no revealments from the accomplices of the chief offender." But witnesses would be produced who would "satisfy the world if not the judges" of Burr's treason. Jefferson enumerates the "overt acts" which the Administration expected to prove.[1002]

Marshall, of course, stood in the way, for it wasplain that "the evidence cannot be collected under 4 months, probably 5." Jefferson had directed his Attorney-General, "unofficially," but "expressly," to "inform the Chief Justice of this." With what result? "Mr. Marshall says, 'more than 5 weeks have elapsed since the opinion of the Supreme Court has declared the necessity of proving the overt acts if they exist. Why are they not proved?' In what terms of decency," growls Jefferson, "can we speak of this? As if an express could go to Natchez or the mouth of the Cumberland and return in 5 weeks, to do which has never taken less than twelve."

Jefferson cannot sufficiently criticize Marshall's opinion: "If, in Nov. or Dec. last, a body of troops had assembled on the Ohio, it is impossible to suppose the affidavits establishing the fact could not have been obtained by the last of March," he quotes from Marshall's ruling. "I ask the judge where they [the affidavits] should have been lodged? At Frankfort? at Cincinnati? at Nashville? St. Louis?... New Orleans?... Where? At Richmond he certainly meant, or meant only to throw dust in the eyes of his audience."[1003]

As his pen flew over the burning page, Jefferson'sanger grew. Marshall's love of monarchy was at the bottom of his decision: "All the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overrun this odious Republic."

Marshall's refinements as to proof required to establish probable cause to believe Burr guilty, particularly irritated Jefferson. "As to the overt acts, were not the bundle of letters of information in Mr. Rodney's hands, the letters and facts published in the local newspapers, Burr's flight, & the universal belief or rumor of his guilt, probable ground for presuming the facts ... so as to put him on trial? Is there a candid man in the U S who does not believe some one, if not all, of these overt acts to have taken place?"

How dare Marshall require legal evidence when "letters, newspapers and rumors" condemned Burr! How dare he, as a judge, not heed "the universal belief," especially when that general public opinion had been crystallized by Jefferson himself!

That Marshall was influenced by politics and was of a kidney with the whole breed of National judges up to that time, Jefferson had not the slightest doubt. "If there ever had been an instance in this or the preceding administrations, of federal judges so applying principles of law as to condemn a federal or acquit a republican offender, I should have judged them in the present case with more charity."

But the conduct of the Chief Justice will be the final outrage which will compel a great reform. "The nation will judge both the offender & judgesfor themselves ... the people ... will see ... & amend the error in our Constitution, which makes any branch independent of the nation.... One of the great co-ordinate branches of the government, setting itself in opposition to the other two, and to the common sense of the nation, proclaims impunity to that class of offenders which endeavors to overturn the Constitution, and are themselves protected in it by the Constitution itself; for impeachment is a farce which will not be tried again."

Thus Jefferson extracts some comfort from Marshall's refusal to obey popular clamor and condemn on "rumor." If Marshall's "protection of Burr produces this amendment,[1004]it will do more good than his condemnation would have done. Against Burr, personally," audaciously adds Jefferson, "I never had one hostile sentiment."[1005]

Such was the state of the President's mind when he learned of Marshall's ruling on the Government's motion to commit Burr to jail upon the charges of treason and high misdemeanor. Jefferson felt that he himself was on trial; he knew that he must make good his charges or suffer a decline in the popularity which he prized above all else in life. He proposed that, at the very least, the public should be on his side, and he resolved to exert the utmost efforts of the National Government to bend Marshall to his will.

Thus the President of the United States became the leading counsel in the prosecution of Aaron Burr, as well as the director-general of a propaganda planned to confirm public opinion of Burr's treason, and to discredit Marshall should his decisions from the bench result in the prisoner's escape from the gallows.[1006]Jefferson ordered his Attorney-General, Cæsar A. Rodney, to direct justices of the peace throughout the country to examine everybody supposed to have any knowledge of Burr, his plans, movements, or conversations. Long lists of questions, designed to elicit replies that would convict Burr, were sent to these officials on printed forms. A vast drag-net was spread over almost the whole of the United States and drawn swiftly and remorselessly to Washington.

The programme for the prosecution became the subject of anxious Cabinet meetings, and the resources of every department of the Executive branch of the Government were employed to overwhelm the accused man. Jefferson directed Madison as Secretary of State "to take the necessary measures," including the advance of money for their expenses, to bring to Richmond witnesses "from great distances."

Five thousand dollars, in a single warrant, was given to the Attorney-General for use in supportingthe Administration's case.[1007]The total amount of the public money expended by Jefferson's orders to secure Burr's conviction was $11,721.11, not a dollar of which had been appropriated for that purpose. "All lawful expenses in the prosecution of Burr were audited, and paid in full," under a law which provided for the conduct of criminal cases; the sums spent by direction of the President were in addition to the money dispensed by authority of that law.[1008]

When Bollmann had been brought to Washington, he had read with rage and amazement the newspaper accounts that Burr had led two thousand armed men in a violent and treasonable attack upon the United States. Accordingly, after Marshall released him from imprisonment, he hastened to Jefferson and tried to correct what he declared to be "false impressions" concerning Burr's treason. Bollmann also wished to convince the President that war with Spain was desirable, and to get his support of Burr's expedition. Jefferson, having taken the precaution to have the Secretary of State present at the interview, listened with apparent sympathy. The following day he requested Bollmann to write out and deliver to him his verbal statements, "Thomas Jefferson giving himhis word of honourthat they should never be used against himself [Bollmann] andthat the paper shall never go out of his[Jefferson's]hand."[1009]

The confiding Bollmann did as the President requested, his whole paper going "to disprove treason, and to show the expediency of war." Because of unfamiliarity with the English language "one or two expressions" may have been "improperly used."[1010]Bollmann's statement Jefferson now transmitted to the District Attorney at Richmond, in order, said the President, "that you may know how to examine him and draw everything from him."

Jefferson ordered Hay to show the paper only to his associate counsel; but, if Bollmann "should prevaricate," the President adds, "ask him whether he did not say so and so to Mr. Madison and myself." The President assures Hay that "in order to let him [Bollmann] see that his prevarication will be marked, Mr. Madison will forward [Hay] a pardon for him, which we mean should be delivered previously." Jefferson fears that Bollmann may not appear as a witness and directs Hay to "take effectual measures to have him immediately taken into custody."

Nor was this all. Three months earlier, Wilkinson had suggested to Jefferson the base expedient of offering pardons to Burr's associates, in order to induce them to betray him and thus make certain his conviction.[1011]Apparently this crafty and sinister advice now recurred to Jefferson's mind—at least he followed it. He enclosed a sheaf of pardons and directed Hay to fill them out "at [his] discretion, if [he] should find a defect of evidence, & believe that this would supply it, by avoiding to give them tothe gross offenders, unless it be visible that the principal will otherwise escape."[1012]

In the same letter Jefferson also sent to Hay the affidavit of one Jacob Dunbaugh, containing a mass of bizarre falsehoods, as was made plain during the trial. Dunbaugh was a sergeant who had been arrested for desertion and had been pardoned by Wilkinson on condition that he would give suitable testimony against Burr. "If," continues Jefferson, "General Wilkinson gets on in time,[1013]I expect he will bring Dunbaugh with him. At any rate it [Dunbaugh's affidavit] may be a ground for an arrest & committment for treason."

Vividly alive to the forces at work to doom him, Burr nevertheless was not dismayed. As a part of his preparation for defense he exercised on all whom he met the full power of his wonderful charm; and if ever a human being needed friends, Aaron Burr needed them in the Virginia Capital. As usual, most of those who conversed with him and looked into his deep, calm eyes became his partisans. Gradually, a circle of men and women of the leading families of Richmond gathered about him, supporting and comforting him throughout his desperate ordeal.

Burr's attorneys were no longer merely his counsel performing their professional duty; even before the preliminary hearing was over, they hadbecome his personal friends and ardent champions. They were ready and eager to go into court and fight for their client with that aggressiveness and enthusiasm which comes only from affection for a man and a faith in his cause. Every one of them not only had developed a great fondness for Burr, but earnestly believed that his enterprise was praise-worthy rather than treasonable.

One of them, John Wickham, was a commanding figure in the society of Richmond, as well as the leader of the Virginia bar at that time.[1014]He was a close friend of Marshall and lived in an imposing house near him. It was to Wickham that Marshall had left the conduct of his cases in court when he went to France on the X. Y. Z. mission.

Dinners were then the principal form of social intercourse in Richmond, and were constantly given. The more prominent lawyers were particularly devoted to this pleasing method of cheer and relaxation. This custom kept the brilliant bar of Richmond sweet and wholesome, and nourished among its members a mutual regard, while discouraging resentments and animosities. Much of that courtesy and deference shown to one another by the lawyers of that city, even in the most spirited encounters in court, was due to that esteem and fellowship which their practice of dining together created.

Of the dispensers of such hospitality, Marshall and Wickham were the most notable and popular. The "lawyer dinners" given by Marshall were famous; and the tradition of them still casts awarm and exhilarating glow. The dinners, too, of John Wickham were quite as alluring. The food was as plentiful and as well prepared, the wines as varied, select, and of as ancient vintage, the brandy as old and "sound," the juleps as fragrant and seductive; and the wit was as sparkling, the table talk as informing, the good humor as heartening. Nobody ever thought of declining an invitation to the house of John Wickham.

All these circumstances combined to create a situation for which Marshall was promptly denounced with that thoughtlessness and passion so characteristic of partisanship—a situation that has furnished a handle for malignant criticism of him to this day. During the interval between the preliminary hearing and the convening of court in May, Wickham gave one of his frequent and much-desired dinners. As a matter of course, Wickham's intimate friend and next-door neighbor was present—no dinner in Richmond ever was complete without the gentle-mannered, laughter-loving John Marshall, with his gift for making everybody happy and at ease. But Aaron Burr was also a guest.

Aaron Burr, "the traitor," held to make answer to charges for his infamous crimes, and John Marshall, the judge before whom the miscreant was to be tried, dining together! And at the house of Burr's chief counsel! Here was an event more valuable to the prosecution than any evidence or argument, in the effect it would have, if rightly employed, on public opinion, before which Burr had been and was arraigned far more than before the court of justice.

Full use was made of the incident. The Republican organ, the RichmondEnquirer, promptly exposed and denounced it. This was done by means of two letters signed "A Stranger from the Country," who "never had any, the least confidence in the political principles of the chief justice"—none in "that noble candor" and "those splendid ... even god-like talents which many of all parties ascribe to him." Base as in reality he was, Marshall might have "spared his country" the "wanton insult" of having "feasted at the same convivial board with Aaron Burr." What excuse was there for "conduct so grossly indecent"? To what motive should Marshall's action be ascribed? "Is this charity, hypocracy, or federalism?" Doubtless he "was not actuated by any corrupt motive," and "was unapprised of the invitation of B."[1015]However, the fact is, that the judge, the accused, and his attorney, were fellow guests at this "treason rejoicing dinner."[1016]

Thus the great opinions of John Marshall, delivered during the trial of Aaron Burr, were condemned before they were rendered or even formed. With that lack of consideration which even democracies sometimes display, the facts were not taken into account. That Marshall never knew, until he was among them, who his fellow guests were to be; that Wickham's dinner, except in the presence of Burr, differed in no respect from those constantly given in Richmond; that Marshall, having arrived, could do nothing except to leave and thus make the situation worse;—none of these simple and obvious facts seemed to have occurred to the eager critics of the Chief Justice.

That Marshall was keenly aware of his predicament there can be no doubt. He was too good a politician and understood too well public whimsies and the devices by which they are manipulated, not to see the consequences of the innocent but unfortunate evening at Wickham's house. But he did not explain; he uttered not a syllable of apology. With good-natured contempt for the maneuvers of the politicians and the rage of the public, yet carefully and coolly weighing every element of the situation, John Marshall, when the appointed day of May came around, was ready to take his seat upon the bench and to conduct the historic trial of Aaron Burr with that kindly forbearance which never deserted him, that canny understanding of men and motives which served him better than learning, and that placid fortitude that could not be shaken.

FOOTNOTES:[917]Plumer, Jan. 30, 1807, "Diary," Plumer MSS. Lib. Cong. Senator Plumer adds: "The government are apprehensive that the arts & address ofBollman, who effected the liberation of the Marquis de Lafayette from the strong prison of Magdeburge, may now find means to liberate himself."[918]Clay to Prentiss, Feb. 15, 1807,Priv. Corres.: Colton, 15; alsoWorks: Colton,iv, 14.[919]Plumer, Feb. 20, 1807, "Register," Plumer MSS. Lib. Cong.[920]Plumer to Mason, Jan. 30, 1807, Plumer MSS. Lib. Cong.Plumer's account of the proceedings is trustworthy. He was an eminent lawyer himself, was deeply interested in the case, and was writing to Jeremiah Mason, then the leader of the New England bar.[921]Eaton: Prentiss, 396.[922]Seesupra, 303-05.Three days before he made oath to the truth of this story, Eaton's claim against the Government was referred to a committee of the House (seeAnnals, 9th Cong. 2d Sess. 383), and within a month from the time the historic affidavit was made, a bill was passed, without debate, "authorizing the settlement of the accounts between the United States and William Eaton."John Randolph was suspicious: "He believed the bill had passed by surprise. It was not so much a bill to settle the accounts of William Eaton, as to rip up the settled forms of the Treasury, and to transfer the accountable duties of the Treasury to the Department of State. It would be a stain upon the Statute Book." (Ib.622.)The very next week after the passage of this measure, Eaton received ten thousand dollars from the Government. (See testimony of William Eaton,Trials of Colonel Aaron Burr: Robertson, stenographer,i, 483.)[923]"Eaton's story ... has now been served up in all the newspapers.... The amount of his narrative is, that he advised the President to send Burr upon an important embassy,because!!!he had discovered the said Burr to be aTraitor to his country." (J. Q. Adams to L. C. Adams, Dec. 8, 1806,Writings, J. Q. A.: Ford,iii, footnote to 157.)[924]Plumer, Jan. 30, 1807, "Diary," Plumer MSS. Lib. Cong.[925]J. Q. Adams to his father, Jan. 30, 1807,Writings, J. Q. A.: Ford,iii, 159.[926]Feb. 28, 1801,Journal Exec. Proc. Senate,i, 387. Cranch was so excellent a judge that, Federalist though he was, Jefferson reappointed him February 21, 1806. (Ib.ii, 21.)[927]Jefferson appointed Nicholas Fitzhugh of Virginia, November 22, 1803 (ib.i, 458), and Allen Bowie Duckett of Maryland, February 28, 1806 (ib.ii, 25).[928]J. Q. Adams to his father, Jan. 27, 1807,Writings, J. Q. A.: Ford,iii, 158.[929]Annals, 9th Cong. 2d Sess. 44.[930]On Friday afternoon the House adjourned till Monday morning.[931]Annals, 9th Cong. 2d Sess. 402.[932]Annals, 9th Cong. 2d Sess. 404-05.[933]Ib.410. Eppes was Jefferson's son-in-law.[934]Ib.412.[935]Ib.414-15.[936]4 Cranch, 76.[937]4 Cranch, 107. Justice Chase, who was absent because of illness, concurred with Johnson. (Clay to Prentiss, Feb. 15, 1807,Priv. Corres.: Colton, 15; alsoWorks: Colton,iv, 15.)Cæsar A. Rodney, Jefferson's Attorney-General, declined to argue the question of jurisdiction.[938]4 Cranch, 125-37.[939]4 Cranch, 125-26.[940]4 Cranch, 127.[941]Seesupra, 303-05.[942]4 Cranch, 128-29.[943]See Appendix D.In his translation Wilkinson carefully omitted the first sentence of Burr's dispatch: "Yours, post-marked 13th of May, is received." (Parton:Burr, 427.) This was not disclosed until the fact was extorted from Wilkinson at the Burr trial. (Seeinfra, chap.viii.)[944]4 Cranch, 131-32.[945]4 Cranch, 132-33.[946]Wilkinson declared in his affidavit that he "drew" from Swartwout the following disclosures: "Colonel Burr, with the support of a powerful association, extending from New York to New Orleans, was levying an armed body of seven thousand men from the state of New York and the Western states and Territories" to invade Mexico which "would be revolutionized, where the people were ready to join them.""There would be some seizing, he supposed at New Orleans"; he "knew full well" that "there were several millions of dollars in the bank of this place," but that Burr's party only "meant to borrow and would return it—they must equip themselves at New Orleans, etc., etc." (Annals, 9th Cong. 2d Sess. 1014-15.)Swartwout made oath that he told Wilkinson nothing of the kind. The high character which this young man then bore, together with the firm impression of truthfulness he made on everybody at that time and during the distracting months that followed, would seem to suggest the conclusion that Wilkinson's story was only another of the brood of falsehoods of which that fecund liar was so prolific.[947]4 Cranch, 133-34.[948]4 Cranch, 135.[949]4 Cranch, 136.[950]Feb. 21, 1807,Memoirs, J. Q. A.: Adams,i, 459.[951]Annals, 9th Cong. 2d Sess. 472.[952]Ib.506.[953]They are: "Article IV. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."Article V. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."Article VI. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence."[954]Annals, 9th Cong. 2d Sess. 531.[955]Ib.532-33.[956]Ib.535.[957]Annals, 9th Cong. 2d Sess. 536.[958]Ib.537-38.[959]Ib.589.[960]Nearly all the men had been told that they were to settle the Washita lands; and this was true, as far as it went. (See testimony of Stephen S. Welch, Samuel Moxley, Chandler Lindsley, John Mulhollan, Hugh Allen, and others,Annals, 10th Cong. 1st Sess. 463et seq.)[961]The boats were very comfortable. They were roofed and had compartments for cooking, eating, and sleeping. They were much like the modern house boat.[962]Bissel to Jackson, Jan. 5, 1807,Annals, 9th Cong. 2d Sess. 1017-18.[963]Murrell to Jackson, Jan. 8, 1807,Annals, 9th Cong. 2d Sess. 1017.[964]Mead to the Secretary of War, Jan. 13, 1807,ib.1018.[965]Burr had picked up forty men on his voyage down the Mississippi.[966]Mead to the War Department, Jan. 19, 1807,Annals, 9th Cong. 2d Sess. 1019.[967]McCaleb, 233-36. For the discussion over this resolution seeDebate in the House of Representatives of the Territory of Orleans, on a Memorial to Congress, respecting the illegal conduct of General Wilkinson. Both sides of the question were fully represented. See also Cox, 194, 200, 206-08.[968]Return of the Mississippi Grand Jury, Feb. 3, reported in theOrleans Gazette, Feb. 20, 1807, as quoted in McCaleb, 272-73.[969]Annals, 10th Cong. 1st Sess. 528-29, 536, 658-61.[970]Deposition of George Peter, Sept. 10, 1807,Am. State Papers, Misc.i, 566; and seeQuarterly Pub. Hist. and Phil. Soc. of Ohio,ix, Nos. 1 and 2, 35-38; McCaleb, 274-75; Cox, 200-08.[971]McCaleb, 277.[972]Ib.[973]In that part of the Territory which is now the State of Alabama.[974]Perkins had read and studied the description of Burr in one of the Proclamations which the Governor of Mississippi had issued. A large reward for the capture of Burr was also offered, and on this the mind of Perkins was now fastened.[975]Pickett:History of Alabama, 218-31.[976]Yet, five months afterward, Jefferson actually wrote Captain Gaines: "That the arrest of Colo. B. was military has been disproved; but had it been so, every honest man & good citizen is bound, by any means in his power, to arrest the author of projects so daring & dangerous." (Jefferson to Gaines, July 23, 1807,Works: Ford,x, 473.)[977]Pickett, 224-25.[978]For the account of Burr's arrest and transfer from Alabama to Richmond, see Pickett, 218-31. Parton adopts Pickett's narrative, adding only one or two incidents; see Parton:Burr, 444-52.[979]Randolph to Nicholson, March 25, 1807, Adams:Randolph, 220.[980]The warrant was written by Marshall himself. (MS. Archives of the United States Court, Richmond, Va.)[981]Burr Trials,i, 1.[982]Burr Trials,i, 1.[983]The first thing that Burr did upon his arrival at Richmond was to put aside his dirty, tattered clothing and secure decent attire.[984]Marshall's eyes were "the finest ever seen, except Burr's, large, black and brilliant beyond description. It was often remarked during the trial, that two such pairs of eyes had never looked into one another before." (Parton:Burr, 459.)[985]It was a rule of Burr's life to ignore attacks upon him. (Seesupra, 280.)[986]Burr Trials,i, 5.[987]Burr Trials,i, 6-8.[988]At the noon hour "a friend" told the Chief Justice of the impression produced, and Marshall hastened to forestall the use that he knew Jefferson would make of it. Calling the reporters about him, he "explicitly stated" that this passage in his opinion "had no allusion to the conduct of the government in the case before him." It was, he assured the representatives of the press, "only an elucidation of Blackstone." (Burr Trials,i, footnote to 11.)[989]Burr Trials,i, 11-18.[990]Ib.19.[991]Burr Trials,i, 20. His "property," however, represented borrowed money.[992]Burr to his daughter, May 15, 1807, Davis,ii, 405-06.[993]Burr to his daughter, May 15, 1807, Davis,ii, 405-06.[994]Giles to Jefferson, April 6, 1807, Anderson, 110. The date is given in Jefferson to Giles, April 20, 1807,Works: Ford,x, 383.[995]Parton:Burr, 455.[996]"Altho' at first he proposed a separation of the Western country, ... yet he very early saw that the fidelity of the Western country was not to be shaken and turned himself wholly towards Mexico and so popular is an enterprize on that country in this, that we had only to be still, & he could have had followers enough to have been in the city of Mexico in 6. weeks." (Jefferson to James Bowdoin, U.S. Minister to Spain, April 2, 1807,Works: Ford,x, 381-82.)In this same letter Jefferson makes this amazing statement: "If we have kept our hands off her [Spain] till now, it has been purely out of respect for France.... We expect therefore from the friendship of the emperor [Napoleon] that he will either compel Spain to do us justice, or abandon her to us. We ask but one month to be in ... the city of Mexico."[997]McCaleb, 325.[998]Seeinfra, 476-77; also vol.iv, chap.i, of this work.[999]See Nicholson to Monroe, April 12, 1807, Adams:Randolph, 216-18. Plumer notes "the rancor of his personal and political animosities." (Plumer, 356.)[1000]Jefferson to James Bowdoin, U.S. Minister to Spain, April 2, 1807,Works: Ford,x, 382.[1001]This was flatly untrue. No process to obtain evidence or to aid the prosecution in any way was ever denied the Administration. This statement of the President was, however, a well-merited reflection on the tyrannical conduct of the National judges in the trials of men for offenses under the Sedition Law and even under the common law. (Seesupra, chap.i.) But, on the one hand, Marshall had not then been appointed to the bench and was himself against the Sedition Law (see vol.ii, chap.xi, of this work); and, on the other hand, Jefferson had now become as ruthless a prosecutor as Chase or Addison ever was.[1002]These were: "1. The enlistment of men in a regular way; 2. the regular mounting of guard round Blennerhassett's island; ... 3. the rendezvous of Burr with his men at the mouth of the Cumberland; 4. his letter to the acting Governor of Mississippi, holding up the prospect of civil war; 5. his capitulation, regularly signed, with the aides of the Governor, as between two independent and hostile commanders."[1003]The affidavits in regard to what happened on Blennerhassett's island would necessarily be lodged in Richmond, since the island was in Virginia and the United States Court for the District of that State alone had jurisdiction to try anybody for a crime committed within its borders.Even had there been any doubt as to where the trial would take place, the Attorney-General would have held the affidavits pending the settlement of that point; and when the place of trial was determined upon, promptly dispatched the documents to the proper district attorney.[1004]The reference is to the amendment to the Constitution urged by Jefferson, and offered by Randolph in the House, providing that a judge should be removed by the President on the address of both Houses of Congress. (Seesupra, chap.iv, 221.)[1005]Jefferson to Giles, April 20, 1807,Works: Ford,x, 383-88.[1006]See Parton:Burr, 456-57. "The real prosecutor of Aaron Burr, throughout this business, was Thomas Jefferson, President of the United States, who was made President of the United States by Aaron Burr's tact and vigilance, and who was able therefore to wield against Aaron Burr the power and resources of the United States." (Ib.457.) And see McCaleb, 361.[1007]Jefferson to the Secretary of State, April 14, 1807,Works: Ford,x, 383.[1008]Jenkinson:Aaron Burr, 282-83.[1009]Jefferson to "Bollman," Jan. 25, 1807, Davis,ii, 388.[1010]Bollmann's narrative, Davis,ii, 389.[1011]McCaleb, 331.[1012]Jefferson to the United States District Attorney for Virginia, May 20, 1807,Works: Ford,x, 394-401.Bollmann, in open court, scornfully declined to accept the pardon. (Seeinfra, 452.)[1013]Wilkinson was thenen routeby sea to testify against Burr before the grand jury.[1014]Mordecai:Richmond in By-Gone Days, 68.[1015]According to a story, told more than a century after the incident occurred, Marshall did not know, when he accepted Wickham's invitation, that Burr was to be a guest, but heard of that fact before the dinner. His wife, thereupon, advised him not to go, but, out of regard for Wickham, he attended. (Thayer:John Marshall, 80-81.)This tale is almost certainly a myth. Professor Thayer, to whom it was told by an unnamed descendant of Marshall, indicates plainly that he had little faith in it.The facts that, at the time, even theEnquireracquitted Marshall of any knowledge that Burr was to be present; that the prudence of the Chief Justice was admitted by his bitterest enemies; that so gross an indiscretion would have been obvious to the most reckless; that Marshall, of all men, would not have embarrassed himself in such fashion, particularly at a time when public suspicion was so keen and excitement so intense—render it most improbable that he knew that Burr was to be at the Wickham dinner.[1016]Enquirer, April 10 and 28, 1807.

[917]Plumer, Jan. 30, 1807, "Diary," Plumer MSS. Lib. Cong. Senator Plumer adds: "The government are apprehensive that the arts & address ofBollman, who effected the liberation of the Marquis de Lafayette from the strong prison of Magdeburge, may now find means to liberate himself."

[918]Clay to Prentiss, Feb. 15, 1807,Priv. Corres.: Colton, 15; alsoWorks: Colton,iv, 14.

[919]Plumer, Feb. 20, 1807, "Register," Plumer MSS. Lib. Cong.

[920]Plumer to Mason, Jan. 30, 1807, Plumer MSS. Lib. Cong.Plumer's account of the proceedings is trustworthy. He was an eminent lawyer himself, was deeply interested in the case, and was writing to Jeremiah Mason, then the leader of the New England bar.

[920]Plumer to Mason, Jan. 30, 1807, Plumer MSS. Lib. Cong.

Plumer's account of the proceedings is trustworthy. He was an eminent lawyer himself, was deeply interested in the case, and was writing to Jeremiah Mason, then the leader of the New England bar.

[921]Eaton: Prentiss, 396.

[922]Seesupra, 303-05.Three days before he made oath to the truth of this story, Eaton's claim against the Government was referred to a committee of the House (seeAnnals, 9th Cong. 2d Sess. 383), and within a month from the time the historic affidavit was made, a bill was passed, without debate, "authorizing the settlement of the accounts between the United States and William Eaton."John Randolph was suspicious: "He believed the bill had passed by surprise. It was not so much a bill to settle the accounts of William Eaton, as to rip up the settled forms of the Treasury, and to transfer the accountable duties of the Treasury to the Department of State. It would be a stain upon the Statute Book." (Ib.622.)The very next week after the passage of this measure, Eaton received ten thousand dollars from the Government. (See testimony of William Eaton,Trials of Colonel Aaron Burr: Robertson, stenographer,i, 483.)

[922]Seesupra, 303-05.

Three days before he made oath to the truth of this story, Eaton's claim against the Government was referred to a committee of the House (seeAnnals, 9th Cong. 2d Sess. 383), and within a month from the time the historic affidavit was made, a bill was passed, without debate, "authorizing the settlement of the accounts between the United States and William Eaton."

John Randolph was suspicious: "He believed the bill had passed by surprise. It was not so much a bill to settle the accounts of William Eaton, as to rip up the settled forms of the Treasury, and to transfer the accountable duties of the Treasury to the Department of State. It would be a stain upon the Statute Book." (Ib.622.)

The very next week after the passage of this measure, Eaton received ten thousand dollars from the Government. (See testimony of William Eaton,Trials of Colonel Aaron Burr: Robertson, stenographer,i, 483.)

[923]"Eaton's story ... has now been served up in all the newspapers.... The amount of his narrative is, that he advised the President to send Burr upon an important embassy,because!!!he had discovered the said Burr to be aTraitor to his country." (J. Q. Adams to L. C. Adams, Dec. 8, 1806,Writings, J. Q. A.: Ford,iii, footnote to 157.)

[924]Plumer, Jan. 30, 1807, "Diary," Plumer MSS. Lib. Cong.

[925]J. Q. Adams to his father, Jan. 30, 1807,Writings, J. Q. A.: Ford,iii, 159.

[926]Feb. 28, 1801,Journal Exec. Proc. Senate,i, 387. Cranch was so excellent a judge that, Federalist though he was, Jefferson reappointed him February 21, 1806. (Ib.ii, 21.)

[927]Jefferson appointed Nicholas Fitzhugh of Virginia, November 22, 1803 (ib.i, 458), and Allen Bowie Duckett of Maryland, February 28, 1806 (ib.ii, 25).

[928]J. Q. Adams to his father, Jan. 27, 1807,Writings, J. Q. A.: Ford,iii, 158.

[929]Annals, 9th Cong. 2d Sess. 44.

[930]On Friday afternoon the House adjourned till Monday morning.

[931]Annals, 9th Cong. 2d Sess. 402.

[932]Annals, 9th Cong. 2d Sess. 404-05.

[933]Ib.410. Eppes was Jefferson's son-in-law.

[934]Ib.412.

[935]Ib.414-15.

[936]4 Cranch, 76.

[937]4 Cranch, 107. Justice Chase, who was absent because of illness, concurred with Johnson. (Clay to Prentiss, Feb. 15, 1807,Priv. Corres.: Colton, 15; alsoWorks: Colton,iv, 15.)Cæsar A. Rodney, Jefferson's Attorney-General, declined to argue the question of jurisdiction.

[937]4 Cranch, 107. Justice Chase, who was absent because of illness, concurred with Johnson. (Clay to Prentiss, Feb. 15, 1807,Priv. Corres.: Colton, 15; alsoWorks: Colton,iv, 15.)

Cæsar A. Rodney, Jefferson's Attorney-General, declined to argue the question of jurisdiction.

[938]4 Cranch, 125-37.

[939]4 Cranch, 125-26.

[940]4 Cranch, 127.

[941]Seesupra, 303-05.

[942]4 Cranch, 128-29.

[943]See Appendix D.In his translation Wilkinson carefully omitted the first sentence of Burr's dispatch: "Yours, post-marked 13th of May, is received." (Parton:Burr, 427.) This was not disclosed until the fact was extorted from Wilkinson at the Burr trial. (Seeinfra, chap.viii.)

[943]See Appendix D.

In his translation Wilkinson carefully omitted the first sentence of Burr's dispatch: "Yours, post-marked 13th of May, is received." (Parton:Burr, 427.) This was not disclosed until the fact was extorted from Wilkinson at the Burr trial. (Seeinfra, chap.viii.)

[944]4 Cranch, 131-32.

[945]4 Cranch, 132-33.

[946]Wilkinson declared in his affidavit that he "drew" from Swartwout the following disclosures: "Colonel Burr, with the support of a powerful association, extending from New York to New Orleans, was levying an armed body of seven thousand men from the state of New York and the Western states and Territories" to invade Mexico which "would be revolutionized, where the people were ready to join them.""There would be some seizing, he supposed at New Orleans"; he "knew full well" that "there were several millions of dollars in the bank of this place," but that Burr's party only "meant to borrow and would return it—they must equip themselves at New Orleans, etc., etc." (Annals, 9th Cong. 2d Sess. 1014-15.)Swartwout made oath that he told Wilkinson nothing of the kind. The high character which this young man then bore, together with the firm impression of truthfulness he made on everybody at that time and during the distracting months that followed, would seem to suggest the conclusion that Wilkinson's story was only another of the brood of falsehoods of which that fecund liar was so prolific.

"There would be some seizing, he supposed at New Orleans"; he "knew full well" that "there were several millions of dollars in the bank of this place," but that Burr's party only "meant to borrow and would return it—they must equip themselves at New Orleans, etc., etc." (Annals, 9th Cong. 2d Sess. 1014-15.)

Swartwout made oath that he told Wilkinson nothing of the kind. The high character which this young man then bore, together with the firm impression of truthfulness he made on everybody at that time and during the distracting months that followed, would seem to suggest the conclusion that Wilkinson's story was only another of the brood of falsehoods of which that fecund liar was so prolific.

[947]4 Cranch, 133-34.

[948]4 Cranch, 135.

[949]4 Cranch, 136.

[950]Feb. 21, 1807,Memoirs, J. Q. A.: Adams,i, 459.

[951]Annals, 9th Cong. 2d Sess. 472.

[952]Ib.506.

[953]They are: "Article IV. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."Article V. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."Article VI. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence."

"Article V. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

"Article VI. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence."

[954]Annals, 9th Cong. 2d Sess. 531.

[955]Ib.532-33.

[956]Ib.535.

[957]Annals, 9th Cong. 2d Sess. 536.

[958]Ib.537-38.

[959]Ib.589.

[960]Nearly all the men had been told that they were to settle the Washita lands; and this was true, as far as it went. (See testimony of Stephen S. Welch, Samuel Moxley, Chandler Lindsley, John Mulhollan, Hugh Allen, and others,Annals, 10th Cong. 1st Sess. 463et seq.)

[961]The boats were very comfortable. They were roofed and had compartments for cooking, eating, and sleeping. They were much like the modern house boat.

[962]Bissel to Jackson, Jan. 5, 1807,Annals, 9th Cong. 2d Sess. 1017-18.

[963]Murrell to Jackson, Jan. 8, 1807,Annals, 9th Cong. 2d Sess. 1017.

[964]Mead to the Secretary of War, Jan. 13, 1807,ib.1018.

[965]Burr had picked up forty men on his voyage down the Mississippi.

[966]Mead to the War Department, Jan. 19, 1807,Annals, 9th Cong. 2d Sess. 1019.

[967]McCaleb, 233-36. For the discussion over this resolution seeDebate in the House of Representatives of the Territory of Orleans, on a Memorial to Congress, respecting the illegal conduct of General Wilkinson. Both sides of the question were fully represented. See also Cox, 194, 200, 206-08.

[968]Return of the Mississippi Grand Jury, Feb. 3, reported in theOrleans Gazette, Feb. 20, 1807, as quoted in McCaleb, 272-73.

[969]Annals, 10th Cong. 1st Sess. 528-29, 536, 658-61.

[970]Deposition of George Peter, Sept. 10, 1807,Am. State Papers, Misc.i, 566; and seeQuarterly Pub. Hist. and Phil. Soc. of Ohio,ix, Nos. 1 and 2, 35-38; McCaleb, 274-75; Cox, 200-08.

[971]McCaleb, 277.

[972]Ib.

[973]In that part of the Territory which is now the State of Alabama.

[974]Perkins had read and studied the description of Burr in one of the Proclamations which the Governor of Mississippi had issued. A large reward for the capture of Burr was also offered, and on this the mind of Perkins was now fastened.

[975]Pickett:History of Alabama, 218-31.

[976]Yet, five months afterward, Jefferson actually wrote Captain Gaines: "That the arrest of Colo. B. was military has been disproved; but had it been so, every honest man & good citizen is bound, by any means in his power, to arrest the author of projects so daring & dangerous." (Jefferson to Gaines, July 23, 1807,Works: Ford,x, 473.)

[977]Pickett, 224-25.

[978]For the account of Burr's arrest and transfer from Alabama to Richmond, see Pickett, 218-31. Parton adopts Pickett's narrative, adding only one or two incidents; see Parton:Burr, 444-52.

[979]Randolph to Nicholson, March 25, 1807, Adams:Randolph, 220.

[980]The warrant was written by Marshall himself. (MS. Archives of the United States Court, Richmond, Va.)

[981]Burr Trials,i, 1.

[982]Burr Trials,i, 1.

[983]The first thing that Burr did upon his arrival at Richmond was to put aside his dirty, tattered clothing and secure decent attire.

[984]Marshall's eyes were "the finest ever seen, except Burr's, large, black and brilliant beyond description. It was often remarked during the trial, that two such pairs of eyes had never looked into one another before." (Parton:Burr, 459.)

[985]It was a rule of Burr's life to ignore attacks upon him. (Seesupra, 280.)

[986]Burr Trials,i, 5.

[987]Burr Trials,i, 6-8.

[988]At the noon hour "a friend" told the Chief Justice of the impression produced, and Marshall hastened to forestall the use that he knew Jefferson would make of it. Calling the reporters about him, he "explicitly stated" that this passage in his opinion "had no allusion to the conduct of the government in the case before him." It was, he assured the representatives of the press, "only an elucidation of Blackstone." (Burr Trials,i, footnote to 11.)

[989]Burr Trials,i, 11-18.

[990]Ib.19.

[991]Burr Trials,i, 20. His "property," however, represented borrowed money.

[992]Burr to his daughter, May 15, 1807, Davis,ii, 405-06.

[993]Burr to his daughter, May 15, 1807, Davis,ii, 405-06.

[994]Giles to Jefferson, April 6, 1807, Anderson, 110. The date is given in Jefferson to Giles, April 20, 1807,Works: Ford,x, 383.

[995]Parton:Burr, 455.

[996]"Altho' at first he proposed a separation of the Western country, ... yet he very early saw that the fidelity of the Western country was not to be shaken and turned himself wholly towards Mexico and so popular is an enterprize on that country in this, that we had only to be still, & he could have had followers enough to have been in the city of Mexico in 6. weeks." (Jefferson to James Bowdoin, U.S. Minister to Spain, April 2, 1807,Works: Ford,x, 381-82.)In this same letter Jefferson makes this amazing statement: "If we have kept our hands off her [Spain] till now, it has been purely out of respect for France.... We expect therefore from the friendship of the emperor [Napoleon] that he will either compel Spain to do us justice, or abandon her to us. We ask but one month to be in ... the city of Mexico."

In this same letter Jefferson makes this amazing statement: "If we have kept our hands off her [Spain] till now, it has been purely out of respect for France.... We expect therefore from the friendship of the emperor [Napoleon] that he will either compel Spain to do us justice, or abandon her to us. We ask but one month to be in ... the city of Mexico."

[997]McCaleb, 325.

[998]Seeinfra, 476-77; also vol.iv, chap.i, of this work.

[999]See Nicholson to Monroe, April 12, 1807, Adams:Randolph, 216-18. Plumer notes "the rancor of his personal and political animosities." (Plumer, 356.)

[1000]Jefferson to James Bowdoin, U.S. Minister to Spain, April 2, 1807,Works: Ford,x, 382.

[1001]This was flatly untrue. No process to obtain evidence or to aid the prosecution in any way was ever denied the Administration. This statement of the President was, however, a well-merited reflection on the tyrannical conduct of the National judges in the trials of men for offenses under the Sedition Law and even under the common law. (Seesupra, chap.i.) But, on the one hand, Marshall had not then been appointed to the bench and was himself against the Sedition Law (see vol.ii, chap.xi, of this work); and, on the other hand, Jefferson had now become as ruthless a prosecutor as Chase or Addison ever was.

[1002]These were: "1. The enlistment of men in a regular way; 2. the regular mounting of guard round Blennerhassett's island; ... 3. the rendezvous of Burr with his men at the mouth of the Cumberland; 4. his letter to the acting Governor of Mississippi, holding up the prospect of civil war; 5. his capitulation, regularly signed, with the aides of the Governor, as between two independent and hostile commanders."

[1003]The affidavits in regard to what happened on Blennerhassett's island would necessarily be lodged in Richmond, since the island was in Virginia and the United States Court for the District of that State alone had jurisdiction to try anybody for a crime committed within its borders.Even had there been any doubt as to where the trial would take place, the Attorney-General would have held the affidavits pending the settlement of that point; and when the place of trial was determined upon, promptly dispatched the documents to the proper district attorney.

Even had there been any doubt as to where the trial would take place, the Attorney-General would have held the affidavits pending the settlement of that point; and when the place of trial was determined upon, promptly dispatched the documents to the proper district attorney.

[1004]The reference is to the amendment to the Constitution urged by Jefferson, and offered by Randolph in the House, providing that a judge should be removed by the President on the address of both Houses of Congress. (Seesupra, chap.iv, 221.)

[1005]Jefferson to Giles, April 20, 1807,Works: Ford,x, 383-88.

[1006]See Parton:Burr, 456-57. "The real prosecutor of Aaron Burr, throughout this business, was Thomas Jefferson, President of the United States, who was made President of the United States by Aaron Burr's tact and vigilance, and who was able therefore to wield against Aaron Burr the power and resources of the United States." (Ib.457.) And see McCaleb, 361.

[1007]Jefferson to the Secretary of State, April 14, 1807,Works: Ford,x, 383.

[1008]Jenkinson:Aaron Burr, 282-83.

[1009]Jefferson to "Bollman," Jan. 25, 1807, Davis,ii, 388.

[1010]Bollmann's narrative, Davis,ii, 389.

[1011]McCaleb, 331.

[1012]Jefferson to the United States District Attorney for Virginia, May 20, 1807,Works: Ford,x, 394-401.Bollmann, in open court, scornfully declined to accept the pardon. (Seeinfra, 452.)

[1012]Jefferson to the United States District Attorney for Virginia, May 20, 1807,Works: Ford,x, 394-401.

Bollmann, in open court, scornfully declined to accept the pardon. (Seeinfra, 452.)

[1013]Wilkinson was thenen routeby sea to testify against Burr before the grand jury.

[1014]Mordecai:Richmond in By-Gone Days, 68.

[1015]According to a story, told more than a century after the incident occurred, Marshall did not know, when he accepted Wickham's invitation, that Burr was to be a guest, but heard of that fact before the dinner. His wife, thereupon, advised him not to go, but, out of regard for Wickham, he attended. (Thayer:John Marshall, 80-81.)This tale is almost certainly a myth. Professor Thayer, to whom it was told by an unnamed descendant of Marshall, indicates plainly that he had little faith in it.The facts that, at the time, even theEnquireracquitted Marshall of any knowledge that Burr was to be present; that the prudence of the Chief Justice was admitted by his bitterest enemies; that so gross an indiscretion would have been obvious to the most reckless; that Marshall, of all men, would not have embarrassed himself in such fashion, particularly at a time when public suspicion was so keen and excitement so intense—render it most improbable that he knew that Burr was to be at the Wickham dinner.

This tale is almost certainly a myth. Professor Thayer, to whom it was told by an unnamed descendant of Marshall, indicates plainly that he had little faith in it.

The facts that, at the time, even theEnquireracquitted Marshall of any knowledge that Burr was to be present; that the prudence of the Chief Justice was admitted by his bitterest enemies; that so gross an indiscretion would have been obvious to the most reckless; that Marshall, of all men, would not have embarrassed himself in such fashion, particularly at a time when public suspicion was so keen and excitement so intense—render it most improbable that he knew that Burr was to be at the Wickham dinner.

[1016]Enquirer, April 10 and 28, 1807.

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