The Life of John Marshall Volume III Part 37

Daveiss failed to produce a single witness, and Burr, "after a dignified and grave harangue," was discharged, to the tumultuous delight of the people.[865]

Two weeks later the discomfited but persistent and undaunted District Attorney again demanded of Judge Innes the apprehension of the "traitor." Clay requested of Burr a written denial of the charges so incessantly made against him. This Burr promptly furnished.[866] Clay was so convinced of Burr's integrity that he declared in court that he "could pledge his own honor and innocence" for those of his client.

Once more no witnesses were produced; once more the grand jury could not return an indictment; once more Burr was discharged. The crowd that packed the court-room burst into cheers.[867] That night a ball, given in Burr's honor, crowned this second of his triumphs in the United States Court.[868]

Thereafter Burr continued his preparations as if nothing had happened.

To all he calmly stated the propriety of his enterprise. To his fellow adventurer, Senator John Smith, he was again particularly explicit and clear: "If there should be a war between the United States and Spain, I shall head a corps of volunteers and be the first to march into the Mexican provinces. If peace should be proffered, which I do not expect, I shall settle my Was.h.i.+ta lands, and make society as pleasant as possible.... I have been persecuted, shamefully persecuted."[869] As to dividing the Union, Burr told Smith that "if Bonaparte with all his army were in the western country with the object ... he would never see salt water again."[870]

While Burr was writing this letter, Jefferson was signing a doc.u.ment that, when sent forth, as it immediately was, ignited all the rumors, reports, accusations, and suspicions that had been acc.u.mulating, and set the country on fire with wrath against the disturber of our national bliss.

When Wilkinson received Burr's cipher dispatch, he took time to consider the best methods for saving himself, filling his purse, and brightening his tarnished reputation.[871] The faithful and unsuspecting young Swartwout, Burr's messenger, was persuaded to remain in Wilkinson's camp for a week after the delivery of the fatal letter. He was treated with marked friendliness, and from him the General afterward pretended to have extracted frightful details of Burr's undertaking.[872]

Seven more days pa.s.sed, and at last, two weeks after he had received Burr's cipher dispatch, Wilkinson wrote Jefferson that "a Numerous and powerful a.s.sociation, extending from New York to ... the Mississippi had been formed to levy & rendezvous eight or Ten Thousand Men in New Orleans ... & from thence ... to carry an Expedition against Vera Cruz."

Wilkinson gave details--dates and places of a.s.sembling troops, methods of invasion, etc., and added: "It is unknown under what Authority this Enterprize has been projected, from where the means of its support are derived, or what may be the intentions of its leaders in relation to the Territory of Orleans."[873]

Surprising as this was, the General supported it by a "confidential" and personal letter to Jefferson[874] still more mysterious and disquieting: "The magnitude of the Enterprize, the desperation of the Place, and the stupendous consequences with which it seems pregnant, stagger my belief & excite doubts of the reality, against the conviction of my Senses; & it is for this reason I shall forbear to commit Names.... I have never in my whole Life found myself in such circ.u.mstances of perplexity and Embarra.s.sment as at present; for I am not only uninformed of the prime mover and Ultimate Objects of this daring Enterprize, but am ignorant of the foundation on which it rests."

Wilkinson went on to say that, as an inducement for him to take part in it, he had been told that "you [Jefferson] connive at the combination and that our country will justify it." If this were not true, "then I have no doubt the revolt of this Territory will be made an auxiliary step to the main design of attacking Mexico." So he thought he ought to compromise with the Spaniards and throw himself with his "little Band into New Orleans, to be ready to defend that Capitol against Usurpation and violence."

He wrote more to the same effect, and added this postscript: "Should Spain be disposed to War seriously with us, might not some plan be adopted to correct the delirium of the a.s.sociates, and by a pitiable appeal to their patriotism to engage them in the service of their Country. I merely offer the suggestion as a possible expedient to prevent the Horrors of a civil contest, and I do believe that, with competent authority I could accomplish the object."[875]

This was the letter which a few months later caused Chief Justice John Marshall to issue a subpoena _duces tec.u.m_ directed to President Thomas Jefferson in order to have it produced in court.[876]

Jefferson had known of the rumors about Burr--George Morgan, Joseph H.

Daveiss, and William Eaton had put him on the track of the "traitor."

Others had told of the American Catiline's treasonable plans; and the newspapers, of which he was a studious reader, had advised the President of every sensation that had appeared. Jefferson and his Cabinet had nervously debated the situation, decided on plans to forestall the conspiracy, and then hurriedly abandoned them;[877] evidently they had no faith in the lurid stories of Burr's treasonable purposes and preparations.

Letters to Jefferson from the West, arriving October 24, 1806, bore out the disbelief of the President and his Cabinet in Burr's lawless activities; for these advices from the President's friends who, on the ground, were closely watching Burr, contained "not one word ... of any movements by Colonel Burr. This total silence of the officers of the Government, of the members of Congress, of the newspapers, proves he is committing no overt act against law," Jefferson wrote in his Cabinet Memorandum.[878] So the President and his Cabinet decided to do nothing further at that time than to order John Graham, while on his way to a.s.sume the office of Secretary of the Orleans Territory, to investigate Burr's activities.

But when the mysterious warnings from Wilkinson reached Jefferson, he again called his Cabinet into consultation and precipitate action was taken. Orders were dispatched to military commanders to take measures against Burr's expedition; Wilkinson was directed to withdraw his troops confronting the Spaniards and dispose of them for the defense of New Orleans and other endangered points.

Most important of all, a Presidential Proclamation was issued to all officials and citizens, declaring that a conspiracy had been discovered, warning all persons engaged in it to withdraw, and directing the ferreting out and seizure of the conspirators' "vessels, arms and military stores."[879] Graham preceded the Proclamation and induced Governor Tiffin and the Ohio Legislature to take action for the seizure of Burr's boats and supplies at Marietta; and this was done.

On December 10, 1806, Comfort Tyler of Onondaga County, New York, one of the minor leaders of the Burr expedition,[880] arrived at Blennerha.s.sett's island with a few boats and some twenty young men who had joined the adventure. There were a half-dozen rifles among them, and a few fowling pieces. With these the youths went hunting in the Ohio forests. Blennerha.s.sett, too, had his pistols. This was the whole of the warlike equipment of that militant throng--all that const.i.tuted that "overt act of treason by levying war against the United States" which soon brought Burr within the shadow of the gallows.

Jefferson's Proclamation had now reached Western Virginia, and it so kindled the patriotism of the militia of Wood County, within the boundaries of which the island lay, that that heroic host resolved to descend in its armed might upon the embattled "traitors," capture and deliver them to the vengeance of the law. The Wood County men, unlike those of Ohio, needed no act of legislature to set their loyalty in motion. The Presidential Proclamation, and the sight of the enemies of the Nation gathered in such threatening and formidable array on Blennerha.s.sett's island, were more than enough to cause them to spring to arms in behalf of their imperiled country.

Badly frightened, Blennerha.s.sett and Tyler, leaving Mrs. Blennerha.s.sett behind, fled down the river with thirty men in six half-equipped boats.

They pa.s.sed the sentries of the Wood County militia only because those ministers of vigilance had got thoroughly drunk and were sound asleep.

Next day, however, the militia invaded the deserted island and, finding the generously stocked wine cellar, restored their strength by drinking all the wine and whiskey on the place. They then demonstrated their abhorrence of treason by breaking the windows, demolis.h.i.+ng the furniture, tearing the pictures, trampling the flower-beds, burning the fences, and insulting Mrs. Blennerha.s.sett.[881]

Graham procured the authorities of Kentucky to take action similar to that adopted in Ohio. Burr, still ignorant of Jefferson's Proclamation, proceeded to Nashville, there to embark in the boats Jackson was building for him, to go on the last river voyage of his adventure.

Jackson, like Smith and Clay, had been made uneasy by the rumors of Burr's treasonable designs. He had written Governor Claiborne at New Orleans a letter of warning, particularly against Wilkinson, and not mentioning Burr by name.[882] When Burr arrived at the Tennessee Capital, Jackson, his manner now cold, demanded an explanation. Burr, "with his usual dignified courtesy, instantly complied."[883] It would seem that Jackson was satisfied by his rea.s.surance, in spite of the President's Proclamation which reached Nashville three days before Burr's departure;[884] for not only did Jackson permit him to proceed, but, when the adventurer started down the c.u.mberland in two of the six boats which he had built on Burr's previous orders, consented that a nephew of his wife should make one of the ten or fifteen young men who accompanied the expedition. He even gave the boy a letter of introduction to Governor Claiborne at New Orleans.[885]

After the people had recovered from the shock of astonishment that Jefferson's Proclamation gave them, the change in them was instantaneous and extreme.[886] The President, to be sure, had not mentioned Burr's name or so much as hinted at treason; all that Jefferson charged was a conspiracy to attack the hated Spaniards, and this was the hope and desire of every Westerner. Nevertheless, the public intelligence penetrated what it believed to be the terrible meaning behind the President's cautious words; the atrocious purpose to dismember the Union, reports of which had pursued Burr since a Spanish agent had first set the rumor afoot a year before, was established in the minds of the people.

Surely the President would not hunt down an American seeking to overthrow Spanish power in North America, when a Spanish "liberator" had been permitted to fit out in the United States an expedition to do the same thing in South America. Surely Jefferson would not visit his wrath on one whose only crime was the gathering of men to strike at Spain with which power, up to that very moment, everybody supposed war to be impending and, indeed, almost begun. This was unthinkable. Burr must be guilty of a greater crime--the greatest of crimes. In such fas.h.i.+on was public opinion made ready to demand the execution of the "traitor" who had so outrageously deceived the people; and that popular outcry began for the blood of Aaron Burr by which John Marshall was a.s.sailed while presiding over the court to which the accused was finally taken.

From the moment that Wilkinson decided to denounce Burr to the President, his language became that of a Bombastes Furioso, his actions those of a military ruffian, his secret movements matched the cunning of a bribe-taking criminal. By swiftest dispatch another message was sent to Jefferson. "My doubts have ceased," wrote Wilkinson, concerning "this deep, dark, wicked, and wide-spread conspiracy, embracing the young and the old, the democrat and the federalist, the native and the foreigner, the patriot of '76 and the exotic of yesterday, the opulent and the needy, the ins and the outs."

Wilkinson a.s.sured Jefferson, however, that he would meet the awful emergency with "indefatigable industry, incessant vigilance and hardy courage"; indeed, declared he, "I shall glory to give my life" to defeat the devilish plot. But the numbers of the desperadoes were so great that, unless Jefferson heavily reinforced him with men and s.h.i.+ps, he and the American army under his command would probably perish.[887]

As the horse bearing the messenger to Jefferson disappeared in the forests, another, upon which rode a very different agent, left Wilkinson's camp and galloped toward the Southwest. The latter agent was Walter Burling, a corrupt factotum of Wilkinson's, whom that martial patriot sent to the Spanish Viceroy at Mexico City to advise him of Wilkinson's latest service to Spain in thwarting Burr's attack upon the royal possessions, and in averting war between the United States and His Catholic Majesty. For these n.o.ble performances Wilkinson demanded of the Spanish Viceroy more than one hundred and ten thousand dollars in cash, together with other sums which "he [had] been obliged to spend in order to sustain the cause of good government, order and humanity."[888]

Wilkinson had asked the Viceroy to destroy the letter and this was accordingly done in Burling's presence. The Royal representative then told Burling that he knew all about Burr's plans to invade Mexico, and had long been ready to repel a much larger force than Wilkinson stated Burr to be leading. "I thanked him for his martial zeal and insinuated that I wished him happiness in the pursuit of his righteous intentions,"

wrote the disgusted and sarcastic Viceroy in his report to the Government at Madrid.[889] With this Wilkinson had to be content, for the Viceroy refused to pay him a peso.

Upon Burling's return, the vigilant American Commander-in-Chief forwarded to Jefferson a report of conditions in Mexico, as represented by Burling, together with a request for fifteen hundred dollars to pay that investigator's expenses.[890] The sole object of Burling's journey was, Wilkinson informed the President, to observe and report upon the situation in the great Spanish Vice-royalty as recent events had affected it, with respect to the interests of the United States; and Jefferson was a.s.sured by the General that his agent was the soundest and most devoted of patriots.[891]

To back up the character he was now playing, Wilkinson showered warnings upon the officers of the Army and upon government officials in New Orleans. "The plot thickens.... My G.o.d! what a situation has our country reached. Let us save it if we can.... On the 15th of this month [November], Burr's declaration is to be made in Tennessee and Kentucky; hurry, hurry after me, and, if necessary, let us be buried together, in the ruins of the place we shall defend." This was a typical message to Colonel Cus.h.i.+ng.[892]

Wilkinson dispatched orders to Colonel Freeman at New Orleans to repair the defenses of the city; but "be you as silent as the grave.... You are surrounded by secret agents."[893] He informed Governor Claiborne that "the storm will probably burst in New Orleans, where I shall meet it and triumph or perish."[894] Otherwise "the fair fabric of our independence ... will be prostrated, and the G.o.ddess of Liberty will take her flight from the globe forever." Again and again, Wilkinson sounded the alarm. "Burr with rebellious bands may soon be at hand."

Therefore, "civil inst.i.tutions must ... yield to the strong arm of military law."[895] But Claiborne must "not breathe or even hint" that catastrophe was approaching.

At last, however, Wilkinson unbosomed himself to the merchants of New Orleans whom he a.s.sembled for that purpose. Agents of the bandit chief were all around them, he said--he would have arrested them long since had he possessed the power. The desperadoes were in larger force than he had at first believed--"by all advices the enemy, at least 2000 strong,"

would soon reach Natchez. They meant, first, to sack New Orleans and then to attack Mexico by land and sea. If successful in that invasion, "the Western States were then to be separated from the Union." But Wilkinson would "pledge his life in the defense of the city and his country."[896]

At that moment Burr had not even started down the Mississippi with his nine boats manned by sixty young men.

For a time the city was thrown into a panic.[897] But Wilkinson had overbl.u.s.tered. The people, recovered from their fright, began to laugh.

Thousands of fierce Vandals, brandis.h.i.+ng their arms, on their way to take New Orleans, capture Mexico, destroy the Union! And this mighty force not now far away! How could that be and no tidings of it except from Wilkinson? That hero witnessed with dismay this turn of public sentiment. Ruthless action, then, or all his complicated performances would go for naught. Ridicule would be fatal to his plans.

So General James Wilkinson, as head of the Army of the United States, began a reign of lawless violence that has no parallel in American history. To such base uses can authority be put--with such peril to life and liberty is it invested--when unchecked by Const.i.tutional limitation enforced by fearless and unprejudiced judges! Men were arrested and thrown into prison on Wilkinson's orders, wholly without warrant of law.

The first thus to be seized were Samuel Swartwout and Dr. Justus Erich Bollmann. Their papers were confiscated; they were refused counsel, were even denied access to the courts. Soldiers carried them to a wars.h.i.+p in the river which at once set sail with orders from Wilkinson for the delivery of the prisoners to the President at Was.h.i.+ngton.[898]

Another man similarly arrested was Peter V. Ogden of New York, nephew of Jonathan Dayton, who had been the companion of Swartwout in his long overland journey in quest of Wilkinson. Public-spirited lawyers swore out writs of habeas corpus for these three men. Not a syllable of evidence was adduced against Ogden, who by some mischance had not been transported with Bollmann and Swartwout, and the court discharged him.

In response to the order of the court to produce the bodies of Bollmann and Swartwout, Wilkinson sent his aide with the General's return to the process. As the "Commander of the Army of the United States," he said, he took on himself "all responsibility ... resulting from the arrest of Erick Bollmann, who is accused of being guilty of the crime of treason against the government and the laws of the United States," and he had "taken opportune measures to warrant his safe delivery into the hands of the President."

This had been done, avowed Wilkinson, solely in order "to secure the nation which is menaced to its foundations by a band of traitors a.s.sociated with Aaron Burr." To that end he would, he defiantly informed the court, "arrest, without respect to cla.s.s or station, all those against whom [he had] positive proof of being accomplices in the machinations against the state."[899] This defiance of the courts was accompanied by a copy of Wilkinson's version of Burr's cipher letter and some memoranda by Bollmann, together with Wilkinson's a.s.sertion that he had certain evidence which he would not, at that time, disclose.

Jefferson had long demanded of Wilkinson a copy of the incriminating Burr letter, and this was now forwarded, together with the General's account of the arrest of Bollmann, Swartwout, and Ogden. In his report to the President, Wilkinson accused the judge who had released Ogden of being an a.s.sociate of Burr in his "treasonable combinations," and characteristically added that he would "look to our country for protection" in case suit for damages was brought against him by Bollmann and Swartwout.[900]

While Bollmann and Swartwout, in close confinement on the wars.h.i.+p, were tossing on the winter seas, the saturnalia of defiance of the law continued in New Orleans. Ogden was again seized and incarcerated. So was his friend, James Alexander of New York, who had displeased Wilkinson by suing out the writs of habeas corpus. Both were shortly taken to a military prison. Judges, leading lawyers, prominent citizens--all protested in vain. New writs of habeas corpus were issued and ignored. Edward Livingston sued out a writ of attachment[901]

against Wilkinson. It was defied. The civil governor was appealed to; he was cowed and declined to act in this "delicate as well as dangerous"

state of things. In despair and disgust Judge James Workman adjourned the Orleans County Court _sine die_ and resigned from the Bench;[902] he too was seized by Wilkinson's soldiers, and recovered his liberty only by the return of the Judge of the United States District Court, who dared the wrath of the military tyrant in order to release his imprisoned fellow judge.[903]

In the midst of this debauch of military lawlessness, General John Adair, late one afternoon, rode into New Orleans. He had come on business, having sent three thousand gallons of whiskey and two boatloads of provisions to be sold in the city, and expecting also to collect a debt of fifteen hundred dollars due him at that place; he had also intended to make some land deals.

The moment Wilkinson heard of the arrival of his old friend and comrade, the General ordered "a captain and one hundred soldiers" to seize Adair.

This was done so peremptorily that he was not allowed to dine, "altho the provision was ready on the table"; he was denied medicine, which on account of illness he wished to take with him; he was refused extra clothing and was not even allowed "to give directions respecting his horses which cost him $700 in Kentucky." Then the bewildered Adair was hurried on board a schooner and taken "down the river 25 miles, landed on the other side ... and placed under a tent in a swamp."

After he had been kept six days under guard in this situation, Adair "was s.h.i.+pped aboard the schooner Thatcher for Baltimore ... in the custody of Lt. Luckett." Wilkinson ordered the lieutenant to keep Adair in close confinement and to resist "with force and arms" any civil officer who might attempt to take Adair "by a writ of habeas corpus."[904]

The reason for this particular atrocity was that Wilkinson had written Adair the letters quoted above, and unless his correspondent were discredited and disgraced, he could convict Wilkinson of the very conspiracy with which Burr was being charged.[905] During his reign of terror to put down "treason," the General was in secret communication with the Spaniards, earning the bribe money which he was, and long had been, receiving from them.[906]

While Wilkinson at New Orleans was thus openly playing despot and secretly serving Spain, the President's Annual Message was read to Congress.

In this doc.u.ment Jefferson informed the National Legislature of the advance of the Spaniards toward American territory, the alarming posture of affairs, the quick response of the pioneers to the call of the Government for volunteers. "Having received information," he said, "that, in another part of the United States, a great number of private individuals were combining together, arming and organizing themselves contrary to law, to carry on a military expedition against the territories of Spain [he] thought it necessary to take measures ... for suppressing this enterprise ... and bringing to justice its authors and abettors."[907] Such was the slight reference made to the Burr "conspiracy." Thanks to the President's Proclamation, the "treasonable"