The Life of John Marshall Volume III Part 43

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 pa.s.sage. 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 pa.s.senger on the vessel, "a stranger ... of his own accord ... a.s.sured [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 They were then taken upon a bench warrant charging them with treason which superseded the writ.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 a.s.sa.s.sinate 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 a.s.sociates, 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 pa.s.sed, 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 pa.s.s 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 Ma.s.sachusetts 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 ent.i.tled 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 pa.s.sions 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 Const.i.tution "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 Const.i.tution 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 a.s.semblage 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 a.s.sembled 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 pa.s.sage was soon to cause Marshall great embarra.s.sment when he was confronted with it in the trial of Aaron Burr at Richmond.

[Ill.u.s.tration: _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, Const.i.tutional crimes. "The framers of our Const.i.tution ... 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 pa.s.sions 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 const.i.tution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the const.i.tutional 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 a.s.semblage 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 a.n.a.lyzed 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 "cooperation" 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 pa.s.s 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 a.s.semblage 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 a.s.sembling 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 a.s.serted that there must be "unequivocal evidence" of "an actual a.s.semblage."

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 a.s.sembling 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 a.s.sertions 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 Const.i.tution "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.