Volume III Part 56 (1/2)
[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.