CHAPTER VII

THE CAPTURE AND ARRAIGNMENT

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them with treason which superseded the writ.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 to strengthen 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 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." 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

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.[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 little more 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 Martin also

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 more important to the citizen or

to the government; none can more affect the safety of both."

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.

[Illustration: _John Marshall_

_From a painting by Richard N. Brooke_]

Did this mean that men who go to the very edge of 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 then applied 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 a

necessary 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 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

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 away _all_ jurisdiction

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

been denied ... 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] John Murrell 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 Representatives were 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 the evidence, 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 other friends, 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 case of 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 the party, 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 as

much 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

great number 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 tyranny of 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

gentleness of 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 the question 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 instance

might 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 he could 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 of this

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 country

that 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 to baffle 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 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 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."

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 was plain 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's anger 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 &

judges for 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 supporting the 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 him _his

word of honour_ that they should never be used against himself

[Bollmann] and _that 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 to the 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

had become 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 a warm 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 Richmond

_Enquirer_, 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 of

_Bollman_, 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; also

_Works_: 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] See _supra_, 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 (see

_Annals_, 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 a _Traitor 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; also _Works_: 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] See _supra_, 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. (See _infra_, 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. 463 _et 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 see

_Debate 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 the

_Orleans 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 see _Quarterly 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. (See

_supra_, 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] See _infra_, 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. (See

_supra_, 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. (See _supra_, 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. (See

_infra_, 452.)

[1013] Wilkinson was then _en route_ by 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 the _Enquirer_ acquitted 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.