Volume III Part 43 (1/2)
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 Was.h.i.+ngton 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 s.h.i.+p 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 Was.h.i.+ngton, 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 Was.h.i.+ngton. 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 They were then taken upon a bench warrant charging them with treason which superseded the writ.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_]