The Life of John Marshall Volume 3 of 4

o directed and animated the p

nbounded and his will is that o

the other has been enlisted to excite preju

s have been addressed to

r a jury to acquit Burr, however inno

, and Burr's dazed dispatch-bearers were brought by military guards to the National Capital. There, on the evening of January 22, they were

applied to Joseph F. Nicholson, now United States Judge at Baltimore, for a writ of habeas corpus. A

ied 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 a

as 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 w

ured 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

firm" was the appearance of the accused men.[924] So universal was the 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.

reimprisoned men at once applied to that tribunal for a writ of habeas corpus, and

hat body, actually moved the appointment of a committee to draft a bill "to suspend the privilege of the writ of habeas corpus." Quickly Giles himself reported the measure, the Senate suspended its rules, and the bill was hurriedly passed, only Bayard of Delaware voting against it.

ether 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 o

hompson of Virginia instantly moved that the "message and the bill received from the Senate ought not

f 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 perfect

[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 we

ed 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, an

g, 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 admitte

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.

Mar

ing by Richa

tures and the courts of America, which neither can be permitted to transcend." Marshall then read, with solemn impressiveness, these words from the Constitution of

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 pa

imes. "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

ing 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

le design ... but no conspiracy for this object, no enlisting of men to effect it, would be an actual levying of war."[940] He then applied these principles to the

d 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 havin

said the Chief Justice, that it "furnishes no distinct view of the design of the writer." But the "co?perati

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

ld justify a suspicion that any territory of the United States was the object of the expedition. For what purpose

ents 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 perf

ney 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 "th

New Orleans."[946] If this meant that the 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

against which the expedition was intended; others to that in which the conversation was held. Some consider the words, if even applicable to

tter 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 h

is, said Marshall, was "sufficiently apparent." If seven thousand men had actually come together in one body, every one woul

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

ions 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 wi

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

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 p

tely a copy of Marshall's opinion. In a true Virginian rage, Giles threatened to offer an amendment to the Constitution "taking aw

as 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

nty 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 part

ge."[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 Indepe

partisan grounds. Only by the most desperate efforts was Jefferson saved from the rebuke and humiliation of the passage of the resol

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

duced 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 o

ed host to "levy war" on the United States for which Jeffe

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] John Murrell of Tennessee, sent on a secret mission of investigation, reported to Jackson that, pursuant to instr

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 th

opted! He wrote a letter to Cowles Mead, Acting Governor of the Territory, stating that rumors he had just heard were untrue; that "his

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

has eventuated in nine boats and one hundred men,[965] and the major part of these

rrors 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 "measur

y Colonel Benijah Osmun and Lyman Harding, two Revolutionary comrades of Burr, who years before had emigrated to Mississippi and developed into wealthy plant

he 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 griev

dney whom Jefferson soon afterward appointed Attorney-General. Judge Rodney out-Wilkinsoned Wilkinson; he denied Burr's request and ordered him to renew his b

h Dirks & Pistolls" were dispatched to assassinate him.[970] Burr consulted Colonel Osmun and other friends, who advised him to keep out of sight for

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 Or

selves 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 tria

coat begirt with a leathern strap, to which a tin cup was suspended on the lef

unty,[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

ertaking him at the residence of Colonel Hinson, who was away from home and whose wife had prepared supper for

renched 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 where

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 militar

in Gaines fell ill and Burr, who among other accomplishments knew much about medicine, treated the sick man and cheered him with gay

lowed 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 ro

s 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

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

describes the cavalcade: "Colonel Burr ... passed by my door the day before yesterday under a strong guard.... To guard against enquiry as much

, 1807, Aaron Burr was brought into the Virginia Capital, where, before a judge who could

nce wrote out,[980] signed, and issued a warrant by virtue of which the desperate yet composed priso

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

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

, 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

e power of which no one who came near either of them could fail to be conscious. Intellectually, also,

ible 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 influenc

ured 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 tha

rt 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 multi

otic 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 e

body 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 ex

t "to repel some observations of a personal nature." Treason meant deeds, yet he was being persecuted on "mere conjecture." The whole

the courts and grand juries in Kentucky and Mississippi, and the result of those investigat

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 so

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 learni

this in order "to prevent any misrepresentations of expressions that might fall on him." He had also assured Hay that, i

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

said Marshall, necessary to justify the court in holding him for the action of the grand jury; but there must be enoug

him was "wholly groundless," but this did not mean that "the hand of malignity may grasp any individual against whom its hate

of Marshall's opinion. Here was this insolent Federalist Chief Justice, at the very outset of the investigation, presuming to reflect upon their idol. Suc

scribed the conduct of the Administration, and they could have been uttered only as a rebuke to Jefferson or as an attempt to cool the

nce 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 f

e" 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 impa

o 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

ng 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

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 ind

erefore, 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

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 kno

to enable Burr to procure sureties for that amount. At the appointed hour the prisoner came into court with five men of proper

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 ... talen

nment, 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 convic

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 esca

t Burr for treason and had released him under bail to appear on the charge of misdemeanor o

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 d

idicule, 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

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

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

doubt" had arisen "in the public mind in the present defective state of the proof." This tendency had "been sedulously encouraged by the tricks o

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 i

lready doing its very best: "We have set on foot an inquiry through the whole of the country which has been the scene of these transactions to be able to prove to the courts, if they will give time, or to the

d 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 offen

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 n

stablishing 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

chy was at the bottom of his decision: "All the principles of law are to be perverted w

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 gro

ondemned Burr! How dare he, as a judge, not heed "the universal belief," especia

the slightest doubt. "If there ever had been an instance in this or the preceding administrations, of federal judges so applying princ

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,

Marshall's "protection of Burr produces this amendment,[1004] it will do more good than his condemnation woul

meanor. 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

ench result in the prisoner's escape from the gallows.[1006] Jefferson ordered his Attorney-General, C?sar 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

utive branch of the Government were employed to overwhelm the accused man. Jefferson directed Madison as Secretary of State "to tak

son'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 pai

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, l

f unfamiliarity with the English language "one or two expressions" may have been "improperly used."[1010] Bollmann's statement Jefferson now tra

ison 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

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] discre

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, "Ge

nderful 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

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

inia bar at that time.[1014] He was a close friend of Marshall and lived in an imposing house near him. It was t

tion. 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 an

ating 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,

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 frien

ied, 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 t

"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 shou

acts 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 g

ut 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, w

TNO

nt are apprehensive that the arts & address of Bollman, who effected the liberation of the Marq

, 1807, Priv. Corres.: Colton,

, 1807, "Register," P

n, Jan. 30, 1807, Pl

nent lawyer himself, was deeply interested in the case, and was w

on: Prent

e supra,

ee of the House (see Annals, 9th Cong. 2d Sess. 383), and within a month from the time the historic affidavit was made, a

le the accounts of William Eaton, as to rip up the settled forms of the Treasury, and to transfer the account

ten thousand dollars from the Government. (See testimony of William E

advised the President to send Burr upon an important embassy, because!!! he had discovered the said Burr to be a T

0, 1807, "Diary," Pl

ther, Jan. 30, 1807, Writin

anch was so excellent a judge that, Federalist though he wa

nia, November 22, 1803 (ib. i, 458), and Allen Bowie

ther, Jan. 27, 1807, Writin

, 9th Cong.

oon the House adjourne

, 9th Cong.

9th Cong. 2d

ppes was Jeffers

] Ib

Ib.

4 Cran

illness, concurred with Johnson. (Clay to Prentiss, Feb. 15,

torney-General, declined to arg

Cranch

Cranch

4 Cran

e supra,

Cranch

ee Appe

Yours, post-marked 13th of May, is received." (Parton: Burr, 427.) This was not disclos

Cranch

Cranch

a powerful association, extending from New York to New Orleans, was levying an armed body of seven thousand men from the state of New

l millions of dollars in the bank of this place," but that Burr's party only "meant to borrow and woul

e firm impression of truthfulness he made on everybody at that time and during the distracting months that followed, would seem to

Cranch

4 Cran

4 Cran

7, Memoirs, J. Q.

, 9th Cong.

] Ib

unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, suppor

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 an

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

, 9th Cong.

Ib.

] Ib

, 9th Cong.

Ib.

] Ib

s was true, as far as it went. (See testimony of Stephen S. Welch, Samuel Moxley, Chandler

ofed and had compartments for cooking, eating, and

Jan. 5, 1807, Annals, 9

, Jan. 8, 1807, Annals,

cretary of War, Jan.

p forty men on his voya

tment, Jan. 19, 1807, Annal

atives of the Territory of Orleans, on a Memorial to Congress, respecting the illegal conduct of Ge

Feb. 3, reported in the Orleans Gazette, F

Cong. 1st Sess. 5

ers, Misc. i, 566; and see Quarterly Pub. Hist. and Phil. Soc.

McCale

2]

he Territory which is n

mations which the Governor of Mississippi had issued. A large reward for the ca

History of Al

ary has been disproved; but had it been so, every honest man & good citizen is bound, by any means in his power,

ickett,

to Richmond, see Pickett, 218-31. Parton adopts Pickett's narra

olson, March 25, 1807,

rshall himself. (MS. Archives of th

rr Trial

rr Trial

arrival at Richmond was to put aside his dirt

brilliant beyond description. It was often remarked during the trial, that two s

r's life to ignore attacks

rr Trial

rr Trial

ould 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 governm

r Trials,

] Ib

His "property," however, r

ughter, May 15, 1807

ughter, May 15, 1807

erson, 110. The date is given in Jefferson t

rton: Bu

aken 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 fo

s been purely out of respect for France.... We expect therefore from the friendship of the emperor [Napoleon] that he

McCale

-77; also vol. iv, c

s: Randolph, 216-18. Plumer notes "the rancor of hi

in, U.S. Minister to Spain, Apr

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. (See supra, chap. i.) But, on the one hand, Marshall had not then bee

rendezvous of Burr with his men at the mouth of the Cumberland; 4. his letter to the acting Governor of Mississippi, holding up the prospe

lodged in Richmond, since the island was in Virginia and the United States Court for the Distri

would have held the affidavits pending the settlement of that point; and when the place of

nd offered by Randolph in the House, providing that a judge should be removed by t

les, April 20, 1807, W

ident of the United States, who was made President of the United States by Aaron Burr's tact and vigilance, and who was a

cretary of State, April 14

nson: Aaron

"Bollman," Jan. 25,

n's narrative,

McCal

s District Attorney for Virginia, Ma

rnfully declined to accept t

route by sea to testify again

: Richmond in B

e accepted Wickham's invitation, that Burr was to be a guest, but heard of that fact before the dinner. His wife

, to whom it was told by an unnamed descendant of Mars

s 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 fa

er, April 10