The Life of John Marshall Volume III Part 56

[1138] _Annals_, 10th Cong. 1st Sess. 452-63. See note 1, next page.

[1139] Wilkinson's testimony on the trial for misdemeanor (_Annals_, 10th Cong. 1st Sess, 520-22) was the same as before the grand jury.

"Wilkinson is now before the grand jury, and has such a mighty ma.s.s of _words_ to deliver himself of, that he claims at least two days more to discharge the wondrous cargo." (Irving to Paulding, June 22, 1807, Irving, I, 145.)

[1140] See McCaleb, 335. Politics alone saved Wilkinson. The trial was universally considered a party matter, Jefferson's prestige, especially, being at stake. Yet seven out of the sixteen members of the grand jury voted to indict Wilkinson. Fourteen of the jury were Republicans, and two were Federalists.

[1141] Randolph to Nicholson, June 25, 1807, Adams: _Randolph_, 221-22.

Speaking of political conditions at that time, Randolph observed: "Politics have usurped the place of law, and the scenes of 1798 [referring to the Alien and Sedition laws] are again revived."

[1142] Testimony of Joseph C. Cabell, one of the grand jury. (_Annals_, 10th Cong. 1st Sess. 677.)

[1143] "Mr. Swartwout ... discovered the utmost frankness and candor in his evidence.... The very frank and candid manner in which he gave his testimony, I must confess, raised him very high in my estimation, and induced me to form a very different opinion of him from that which I had before entertained." (Testimony of Littleton W. Tazewell, one of the grand jury, _Annals_, 10th Cong. 1st Sess. 633.)

"The manner of Mr. Swartwout was certainly that of conscious innocence."

(Testimony of Joseph C. Cabell, one of the grand jury, _ib._ 677.)

[1144] See _supra_, 426-27.

[1145] Forty-eight witnesses were examined by the grand jury. The names are given in Brady: _Trial of Aaron Burr_, 69-70.

[1146] _Burr Trials_, I, 305-06; also "Bills of Indictment," MSS.

Archives of the United States Court, Richmond, Va.

The following day former Senator Jonathan Dayton of New Jersey, Senator John Smith of Ohio, Comfort Tyler and Israel Smith of New York, and Davis Floyd of the Territory of Indiana, were presented for treason. How Bollmann, Swartwout, Adair, Brown, and others escaped indictment is only less comprehensible than the presentment of Tyler, Floyd, and the two Smiths for treason.

[1147] _Blennerha.s.sett Papers_: Safford, 314. "Two of the most respectable and influential of that body, since it has been discharged, have declared they mistook the meaning of Chief Justice Marshall's opinion as to what sort of acts amounted to treason in this country, in the case of Swartwout and Ogden [Bollmann]; that it was under the influence of this mistake they concurred in finding such a bill against A. Burr, which otherwise would have probably been ignored."

[1148] _Burr Trials_, I, 327-28.

[1149] Hay to Jefferson, June 25, 1807, Jefferson MSS. Lib. Cong.

[1150] _Burr Trials_, I, 197-357.

[1151] This was one of Luther Martin's characteristic outbursts. Every word of it, however, was true.

[1152] _Burr Trials_, I, 197-357.

CHAPTER IX

WHAT IS TREASON?

No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. (Const.i.tution, Article III, Section 3.)

Such are the jealous provisions of our laws in favor of the accused that I question if he can be convicted. (Jefferson.)

The scenes which have pa.s.sed and those about to be transacted will hereafter be deemed fables, unless attested by very high authority. (Aaron Burr.)

That this court dares not usurp power is most true. That this court dares not shrink from its duty is no less true.

(Marshall.)

While the grand jury had been examining witnesses, interesting things had taken place in Richmond. Burr's friends increased in number and devotion. Many of them accompanied him to and from court each day.[1153]

Dinners were given in his honor, and Burr returned these courtesies, sometimes entertaining at his board a score of men and women of the leading families of the city.[1154] Fas.h.i.+onable Richmond was rapidly becoming Burr-partisan. In society, as at the bar, the Government had been maneuvered into defense. Throughout the country, indeed, Burr's numerous adherents had proved stanchly loyal to him.

"I believe," notes Senator Plumer in his diary, "even at this period, that no man in this country, has more personal friends or who are more firmly attached to his interests--or would make greater sacrifices to aid him than this man."[1155] But this availed Burr nothing as against the opinion of the mult.i.tude, which Jefferson manipulated as he chose.

Indeed, save in Richmond, this very fidelity of Burr's friends served rather to increase the public animosity; for many of these friends were persons of standing, and this fact did not appeal favorably to the rank and file of the rampant democracy of the period.

In Richmond, however, Burr's presence and visible peril animated his followers to aggressive action. On the streets, in the taverns and drinking-places, his adherents grew bolder. Young Swartwout chanced to meet the bulky, epauletted Wilkinson on the sidewalk. Flying into "a paroxysm of disgust and rage," Burr's youthful follower[1156] shouldered the burly general "into the middle of the street." Wilkinson swallowed the insult. On learning of the incident Jackson "was wild with delight."[1157] Burr's enemies were as furious with anger. To spirited Virginians, only treason itself was worse than the refusal of Wilkinson, thus insulted, to fight.

Swartwout, perhaps inspired by Jackson, later confirmed this public impression of Wilkinson's cowardice. He challenged the General to a duel; the hero refused--"he held no correspondence with traitors or conspirators," he loftily observed;[1158] whereupon the young "conspirator and traitor" denounced, in the public press, the commander of the American armies as guilty of treachery, perjury, forgery, and cowardice.[1159] The highest officer in the American military establishment "posted for cowardice" by a mere stripling! More than ever was Swartwout endeared to Jackson.

Soon after his arrival at Richmond, and a week before Burr was indicted, Wilkinson perceived, to his dismay, the current of public favor that was beginning to run toward Burr; and he wrote to Jefferson in unctuous horror: "I had antic.i.p.ated that a deluge of Testimony would have been poured forth from all quarters, to overwhelm Him [Burr] with guilt & dishonour--... To my Astonishment I found the Traitor vindicated & myself condemned by a Ma.s.s of Wealth Character-influence & Talents--merciful G.o.d what a Spectacle did I behold--Integrity & Truth perverted & trampled under foot by turpitude & Guilt, Patriotism appaled & Usurpation triumphant."[1160]

Wilkinson was plainly weakening, and Jefferson hastened to comfort his chief witness: "No one is more sensible than myself of the injustice which has been aimed at you. Accept I pray, my salutations and a.s.surances of respect and esteem."[1161]

Before the grand jury had indicted Burr and Blennerha.s.sett, Wilkinson suffered another humiliation. On the very day that the General sent his wailing cry of outraged virtue to the President, Burr gave notice that he would move that an attachment should issue against Jefferson's hero for "contempt in obstructing the administration of justice" by rifling the mails, imprisoning witnesses, and extorting testimony by torture.[1162] The following day was consumed in argument upon the motion that did not rise far above bickering. Marshall ruled that witnesses should be heard in support of Burr's application, and that Wilkinson ought to be present.[1163] Accordingly, the General was ordered to come into court.

James Knox, one of the young men who had accompanied Burr on his disastrous expedition, had been brought from New Orleans as a witness for the Government. He told a straightforward story of brutality inflicted upon him because he could not readily answer the printed questions sent out by Jefferson's Attorney-General.[1164] By other witnesses it appeared that letters had been improperly taken from the post-office in New Orleans.[1165] An argument followed in which counsel on both sides distinguished themselves by the learning and eloquence they displayed.[1166]

It was while Botts was speaking on this motion to attach Wilkinson, that the grand jury returned the bills of indictment.[1167] So came the dramatic climax.

Instantly the argument over the attachment of Wilkinson was suspended.

Burr said that he would "prove that the indictment against him had been obtained by perjury"; and that this was a reason for the court to exercise its discretion in his favor and to accept bail instead of imprisoning him.[1168] Marshall asked Martin whether he had "any precedent, where a court has bailed for treason, after the finding of a grand jury," when "the testimony ... had been impeached for perjury," or new testimony had been presented to the court.[1169] For once in his life, Martin could not answer immediately and offhand. So that night Aaron Burr slept in the common jail at Richmond.

"The cup of bitterness has been administered to him with unsparing hand," wrote Was.h.i.+ngton Irving.[1170] But he did not quail. He was released next morning upon a writ of habeas corpus;[1171] the argument on the request for the attachment of Wilkinson was resumed, and for three days counsel attacked and counter-attacked.[1172] On June 26, Burr's attorneys made oath that confinement in the city jail was endangering his health; also that they could not, under such conditions, properly consult with him about the conduct of his case. Accordingly, Marshall ordered Burr removed to the house occupied by Luther Martin; and to be confined to the front room, with the window shutters secured by bars, the door by a padlock, and the building guarded by seven men.

Burr pleaded not guilty to the indictments against him, and orders were given for summoning the jury to try him.[1173]

Finally, Marshall delivered his written opinion upon the motion to attach Wilkinson. It was unimportant, and held that Wilkinson had not been shown to have influenced the judge who ordered Knox imprisoned or to have violated the laws intentionally. The Chief Justice ordered the marshal to summon, in addition to the general panel, forty-eight men to appear on August 3 from Wood County, in which Blennerha.s.sett's island was located, and where the indictment charged that the crime had been committed.[1174]

Five days before Marshall adjourned court in order that jurymen might be summoned and both prosecution and defense enabled to prepare for trial, an event occurred which proved, as nothing else could have done, how intent were the people on the prosecution of Burr, how unshakable the tenacity with which Jefferson pursued him.

On June 22, 1807, the British wars.h.i.+p, the Leopard, halted the American frigate, the Chesapeake, as the latter was putting out to sea from Norfolk. The British officers demanded of Commodore James Barron to search the American s.h.i.+p for British deserters and to take them if found. Barron refused. Thereupon the Leopard, having drawn alongside the American vessel, without warning poured broadsides into her until her masts were shot away, her rigging destroyed, three sailors killed and eighteen wounded. The Chesapeake had not been fitted out, was unable to reply, and finally was forced to strike her colors. The British officers then came on board and seized the men they claimed as deserters, all but one of whom were American-born citizens.[1175]

The whole country, except New England, roared with anger when the news reached the widely separated sections of it; but the tempest soon spent its fury. Quickly the popular clamor returned to the "traitor" awaiting trial at Richmond. Nor did this "enormity," as Jefferson called the attack on the Chesapeake,[1176] committed by a foreign power in American waters, weaken for a moment the President's determination to punish the native disturber of our domestic felicity.

The news of the Chesapeake outrage arrived at Richmond on June 25, and John Randolph supposed that, of course, Jefferson would immediately call Congress in special session.[1177] The President did nothing of the kind. Wilkinson, as Commander of the Army, advised him against armed retaliation. The "late outrage by the British," wrote the General, "has produced ... a degree of Emotion bordering on rage--I revere the Honourable impulse but fear its Effects--... The present is no moment for precipitancy or a stretch of power--on the contrary the British being prepared for War & we not, a sudden appeal to hostilities will give them a great advantage--... The efforts made here [Richmond] by a band of depraved Citizens, in conjunction with an audacious phalanx of insolent exotics, to save Burr, will have an ultimate good Effect, for the national Character of the _Ancient dominion_ is in display, and the honest impulses of true patriotism will soon silence the advocates of usurpation without & conspiracy within."

Wilkinson tells Jefferson that he is coming to Was.h.i.+ngton forthwith to pay his "respects," and concludes: "You are doubtless well advised of proceedings here in the case of Burr--to me they are incomprehensible as I am no Jurist--The Grand Jury actually made an attempt to present me for Misprision of Treason--... I feel myself between 'Scylla and Carybdis' the Jury would Dishonor me for failing of my Duty, and Burr & his Conspirators for performing it--"[1178]

Not until five weeks after the Chesapeake affair did the President call Congress to convene in special session on October 26--more than four months after the occurrence of the crisis it was summoned to consider.[1179] But in the meantime Jefferson had sent a messenger to advise the American Minister in London to tell the British Government what had happened, and to demand a disavowal and an apology.

Meanwhile, the Administration vigorously pushed the prosecution of the imprisoned "traitor" at Richmond.[1180] Hay was dissatisfied that Burr should remain in Martin's house, even under guard and with windows barred and door locked; and he obtained from the Executive Council of Virginia a tender to the court of "apartments on the third floor" of the State Penitentiary for the incarceration of the prisoner. Burr's counsel strenuously objected, but Marshall ordered that he be confined there until August 2, at which time he should be returned to the barred and padlocked room in Martin's house.[1181]

In the penitentiary, "situated in a solitary place among the hills" a mile and a half from Richmond,[1182] Burr remained for five weeks. Three large rooms were given him in the third story; the jailer was considerate and kind; his friends called on him every day;[1183] and servants constantly "arrived with messages, notes, and inquiries, bringing oranges, lemons, pineapples, raspberries, apricots, cream, b.u.t.ter, ice and some ordinary articles."[1184]