The Life of John Marshall
Chapter 176 : James Elliot of Vermont said that "most of the privileges intended to be secured&

James Elliot of Vermont said that "most of the privileges intended to be secured" by the Fourth, Fifth, and Sixth Amendments[953] "have recently been denied ... at the point of the bayonet, and under circ.u.mstances of peculiar violence." He read Wilkinson's impertinent return to the Orleans County Court. This, said Elliot, was "not obedience to the laws ... but ... defiance.... What necessity could exist for seizing one or two wandering conspirators, and transporting them fifteen hundred or two thousand miles from the Const.i.tutional scene of inquisition and trial, to place them particularly under the eye of the National Government"?[954] Not only was the swish of the party whip heard in the House, he a.s.serted, but members who would not desert the fundamentals of liberty must "be prepared for the insinuation that we countenance treason, and sympathize with traitors."[955]

The shrill voice of John Randolph was heard. Almost his first sentence was a blow at Jefferson. If the President and his party "ever quit the ground of trial by jury, the liberty of the press, and the subordination of the military to the civil authority, they must expect that their enemies will perceive the desertion and avail themselves of the advantage."[956] Randolph a.s.sailed the recent attempt to suspend the writ of habeas corpus which, he said, "was intended ... to cover with a mantle the most daring usurpation which ever did, will, or can happen, in this or any country. There was exactly as much right to shoot the persons in question as to do what has been done."[957] The Declaration of Independence had a.s.signed wrongs of precisely the kind suffered by Bollmann and Swartwout "as one of the grievances imposed by the British Government on the colonies. Now, it is done under the Const.i.tution,"

exclaimed Randolph, "and under a republican administration, and men are transported without the color of law, nearly as far as across the Atlantic."[958]

Again and again angry speakers denounced the strenuous attempts of the Administration's supporters to influence Republican votes on partisan grounds. Only by the most desperate efforts was Jefferson saved from the rebuke and humiliation of the pa.s.sage of the resolution. But his escape was narrow. Indefinite postponement was voted by the dangerous majority of 2 out of a total of 118 members.[959]

While Burr's messengers were on the high seas, prisoners of war, and Wilkinson at New Orleans was saving the Republic by rending its laws, Burr himself, ignorant of all, was placidly making his way down the Ohio and Mississippi with his nine boats and sixty adventurers, mostly youths, many only boys. He had left Jackson at Nashville on December 22, and floating down the c.u.mberland in two unarmed boats, had joined the remainder of the little expedition.

He then met for the first time the young adventurers whom Blennerha.s.sett, Comfort Tyler of Syracuse, New York, and Davis Floyd of the tiny settlement of New Albany, Indiana Territory, had induced to join the expedition. On a cold, rainy December morning they were drawn up in a semi-circle on a little island at the mouth of the c.u.mberland River, and Burr was introduced to each of them. Greeting them with his customary reserved friendliness, he told them that the objects of the expedition not already disclosed to them would be revealed at a more opportune time.[960]

Such was the second "overt act" of the gathering of an armed host to "levy war" on the United States for which Jefferson later fastened the charge of treason upon Aaron Burr.

As it floated down the Ohio and Mississippi, the little flotilla[961]

stopped at the forts upon the river bluffs, and the officers proffered Burr all the courtesies at their command. Seven days after Burr had left Fort Ma.s.sac, Captain Bissel, in answer to a letter of inquiry from Andrew Jackson, a.s.sured him that "there has nothing the least alarming appeared"; Burr had pa.s.sed with a few boats "having nothing on board that would even suffer a conjecture, more than a man bound to market."[962] John Murrell of Tennessee, sent on a secret mission of investigation, reported to Jackson that, pursuant to instructions, he had closely followed and examined Burr's movements on the c.u.mberland; that he had heard reports that Burr "had gone down the river with one thousand armed men"; but Murrell had found the fact to be that there were but ten boats with only "sixty men on board," and "no appearance of arms."[963]

During the week when John Randolph, in the House, was demanding information of the President, and Wilkinson, in New Orleans, was making his second series of arrests, Burr, with his little group of boats and small company of men--totally unequipped for anything but the settlement of the Was.h.i.+ta lands, and poorly supplied even for that--serenely drew up to the landing at the small post of Bayou Pierre in the Territory of Mississippi. He was still uninformed of what was going forward at New Orleans and at Was.h.i.+ngton--still unconscious of the storm of hatred and denunciation that had been blown up against him.

At the little settlement, Burr learned for the first time of the fate prepared for him. b.l.o.o.d.y and violent were the measures he then adopted!

He wrote a letter to Cowles Mead, Acting Governor of the Territory, stating that rumors he had just heard were untrue; that "his object is agriculture and his boats are the vehicles of immigration." But he "hinted at resistance to any attempt to coerce him."[964]

What followed was related by Mead himself. As directed by the War Department, he had prorogued the Legislature, put the Territory in a state of defense, and called out the militia. When Burr's letter came, Mead ordered these frontier soldiers to "rendezvous at certain points.... With the prompt.i.tude of Spartans, our fellow-citizens shouldered their firelocks, and in twenty-four hours I had the honor to review three hundred and seventy-five men at Natches, prepared to defend their country." Mead sent two aides to Burr, "who tendered his respects to the civil authority." The Acting Governor himself then saw Burr, whereupon the desperado actually "offered to surrender himself to the civil authority of the Territory, and to suffer his boats to be searched." This was done by "four gentlemen of unquestionable respectability, with a detachment of thirty men." Burr readily went into court and awaited trial.

"Thus, sir," concludes Governor Mead, "this mighty alarm, with all its exaggeration, has eventuated in nine boats and one hundred men,[965] and the major part of these are boys, or young men just from school," wholly unaware of Burr's evil designs.[966]

The Legislature of the Territory of Orleans had just convened. Governor Claiborne recommended that a law be pa.s.sed suspending the writ of habeas corpus. Behind closed doors the Representatives were harangued by Wilkinson on the subject of the great conspiracy. All the old horrors were again paraded to induce the legislators to support Wilkinson in his lawless acts. Instead, that body denied the existence of treason in Louisiana, expressed alarm at the "late privation" of the rights of American citizens, and determined to investigate the "measures and motives" of Wilkinson. A memorial to Congress was adopted, denouncing "the acts of high-handed military power ... too notorious to be denied, too illegal to be justified, too wanton to be excused," by which "the temple of justice" had been "sacrilegiously rifled."[967]

In Mississippi, Burr calmly awaited his trial before the United States Court of that Territory. Bail in the sum of five thousand dollars had been furnished by Colonel Benijah Osmun and Lyman Harding, two Revolutionary comrades of Burr, who years before had emigrated to Mississippi and developed into wealthy planters. Colonel Osmun invited Burr to be his guest. Having seen the ogre and talked with him, the people of the neighborhood became Burr's enthusiastic friends.

Soon the grand jury was impaneled to investigate Burr's "crimes" and indict him for them if a true bill could be found. This body outdid the performance of the Kentucky grand jury nine weeks earlier. The grand jurors a.s.serted that, after examining the evidence, they were "of the opinion that Aaron Burr has not been guilty of any crime or misdemeanor against the laws of the United States or of this Territory or given any just alarm or inquietude to the good people of this Territory." Worse still followed--the grand jury formally presented as "a grievance" the march of the militia against Burr, since there had been no prior resistance by him to the civil authorities. Nor did the grand jurors stop there. They also presented "as a grievance, destructive of personal liberty," Wilkinson's military outrages in New Orleans.[968]

When the grand jury was dismissed, Burr asked to be discharged and his sureties released from his bond. The judge was Thomas Rodney, the father of Caesar A. Rodney whom Jefferson soon afterward appointed Attorney-General. Judge Rodney out-Wilkinsoned Wilkinson; he denied Burr's request and ordered him to renew his bond or go to jail. This was done despite the facts that the grand jury had refused to indict Burr and that there was no legal charge whatever before the court.

Wilkinson was frantic lest Burr escape him. Every effort was made to seize him; officers in disguise were sent to capture him,[969] and men "armed with Dirks & Pistolls" were dispatched to a.s.sa.s.sinate him.[970]

Burr consulted Colonel Osmun and other friends, who advised him to keep out of sight for a time. So he went into hiding, but wrote the Governor that he would again come before the court when he could be a.s.sured of being dealt with legally.

Thereupon the bond of five thousand dollars, which Judge Rodney had compelled Burr to give, was declared forfeited and a reward of two thousand dollars was offered for his apprehension. From his place of retreat the harried man protested by letter. The Governor would not relent. Wilkinson was raging in New Orleans. Illegal imprisonment, probably death, was certain for Burr if he should be taken. His friends counseled flight, and he acted on their judgment.[971]

But he would not go until he had seen his disconsolate followers once more. Stealthily visiting his now unguarded flotilla, he told his men to take for themselves the boats and provisions, and, if they desired, to proceed to the Was.h.i.+ta lands, settle there, and keep as much as they wanted. He had stood his trial, he said, and had been acquitted; but now he was to be taken by unlawful violence, and the only thing left for him to do was to "flee from oppression."[972]

Colonel Osmun gave him the best horse in his stables. Clad "in an old blanket-coat begirt with a leathern strap, to which a tin cup was suspended on the left and a scalping knife on the right," Aaron Burr rode away into the wilderness.

At ten o'clock of a rainy night, on the very day when Marshall delivered his first opinion in the case of Bollmann and Swartwout, Burr was recognized at a forest tavern in Was.h.i.+ngton County,[973] where he had stopped to inquire the way to the house of Colonel Hinson, whom he had met at Natchez on his first Western journey and who had invited Burr to be his guest if he ever came to that part of the Territory. "Major"

Nicholas Perkins, a burly backwoods lawyer from Tennessee, penetrated the disguise,[974] because of Burr's fine eyes and erect carriage.

Perkins hurried to the cabin of Theodore Brightwell, sheriff of the county, and the two men rode after Burr, overtaking him at the residence of Colonel Hinson, who was away from home and whose wife had prepared supper for the wanderer. Brightwell went inside while Perkins remained in the downpour watching the house from the bushes.

Burr so won the hearts of both hostess and sheriff that, instead of arresting him, the officer proposed to guide the escaping criminal on his way the next morning.[975] The drenched and s.h.i.+vering Perkins, feeling that all was not right inside the cabin, hastened by horse and canoe to Fort Stoddert and told Captain Edward P. Gaines of Burr's whereabouts. With a file of soldiers the captain and the lawyer set off to find and take the fugitive. They soon met him with the sheriff, who was telling Burr the roads to follow.

Exclusively upon the authority of Jefferson's Proclamation, Burr was arrested and confined in the fort. With quiet dignity, the "traitor"

merely protested and asked to be delivered to the civil courts. His arrest was wholly illegal, he correctly said; let a judge and jury again pa.s.s on his conduct. But seizure and incarceration by military force, utterly without warrant of law, were a denial of fundamental rights--rights which could not be refused to the poorest citizen or the most abandoned criminal.[976]

Two weeks pa.s.sed before Burr was sent northward. During this period all within the stockades became his friends. The brother of Captain Gaines fell ill and Burr, who among other accomplishments knew much about medicine, treated the sick man and cheered him with gay conversation.

The soldiers liked Burr; the officers liked him; their wives liked him.

Everybody yielded to his strange attractiveness.

Two weeks after Marshall discharged Bollmann and Swartwout at Was.h.i.+ngton, Burr was delivered by Captain Gaines to a guard of nine men organized by Perkins; and, preceded and followed by them, he began the thousand-mile journey to Was.h.i.+ngton. For days torrential rains fell; streams were swollen; the soil was a quagmire. For hundreds of miles the only road was an Indian trail; wolves filled the forest; savage Indians were all about.[977] At night the party, drenched and chilled, slept on the sodden earth. Burr never complained.

After ten days the first white settlements appeared. In two days more, South Carolina was reached. The cautious Perkins avoided the larger settlements, for Burr was popular in that State and his captor would run no risks of a rescue. As the prisoner and his convoy were pa.s.sing through a village, a number of men were standing before a tavern. Burr suddenly threw himself from his horse and cried: "I am Aaron Burr, under military arrest, and claim the protection of the civil authorities."

Before any one could move, Perkins sprang to Burr's side, a pistol in each hand, and ordered him to remount. Burr refused; and the gigantic frontier lawyer lifted the slight, delicate prisoner in his hands, threw him into his saddle, and the sorry cavalcade rode on, guards now on either side, as well as before and behind their charge. Then, for the first and last time in his life, Burr lost his composure, but only for a moment; tears filled his eyes, but instantly recovering his self-possession, he finished the remainder of that harrowing trip as courteous, dignified, and serene as ever.[978]

At Fredericksburg, Virginia, Perkins received orders from the Government to take his prisoner to Richmond instead of to Was.h.i.+ngton. John Randolph describes the cavalcade: "Colonel Burr ... pa.s.sed by my door the day before yesterday under a strong guard.... To guard against enquiry as much as possible he was accoutred in a shabby suit of homespun with an old white hat flopped over his face, the dress in which he was apprehended."[979]

In such fas.h.i.+on, when the candles were being lighted on the evening of Thursday, March 26, 1807, Aaron Burr was brought into the Virginia Capital, where, before a judge who could be neither frightened nor cajoled, he was to make final answer to the charge of treason.

Burr remained under military guard until the arrival of Marshall at Richmond. The Chief Justice at once wrote out,[980] signed, and issued a warrant by virtue of which the desperate yet composed prisoner was at last surrendered to the civil authorities, before whom he had so long demanded to be taken.

During the noon hour on Monday, March 30, Marshall went to "a retired room" in the Eagle Tavern. In this hostelry Burr was confined. Curious citizens thronged the big public room of the inn and were "awfully silent and attentive" as the pale and worn conspirator was taken by Major Joseph Scott, the United States Marshal, and two deputies through the quiet but hostile a.s.semblage to the apartment where the Chief Justice awaited him. To the disappointment of the crowd, the door was closed and Aaron Burr stood before John Marshall.[981]

George Hay, the United States District Attorney, had objected to holding even the beginning of the preliminary hearing at the hotel, because the great number of eager and antagonistic spectators could not be present.

Upon the sentiment of these, as will be seen, Hay relied, even more than upon the law and the evidence, to secure the conviction of the accused man. He yielded, however, on condition that, if any discussion arose among counsel, the proceedings should be adjourned to the Capitol.[982]

It would be difficult to imagine two men more unlike in appearance, manner, attire, and characteristics, than the prisoner and the judge who now confronted each other; yet, in many respects, they were similar.

Marshall, towering, ramshackle, bony, loose-jointed, negligently dressed, simple and unconventional of manner; Burr, undersized and erect, his apparel scrupulously neat,[983] his deportment that of the most punctilious society. Outwardly, the two men resembled each other in only a single particular: their eyes were as much alike as their persons were in contrast.[984] Burr was fifty years of age, and Marshall was less than six months older.

Both were calm, admirably poised and self-possessed; and from the personality of each radiated a strange power of which no one who came near either of them could fail to be conscious. Intellectually, also, there were points of remarkable similarity. Clear, cold logic was the outstanding element of their minds.

The two men had the gift of lucid statement, although Marshall indulged in tiresome repet.i.tion while Burr never restated a point or an argument.

Neither ever employed imagery or used any kind of rhetorical display.

Notwithstanding the rigidity of their logic, both were subtle and astute; it was all but impossible to catch either off his guard. But Marshall gave the impression of great frankness; while about every act and word of Burr there was the air of mystery. The feeling which Burr's actions inspired, that he was obrept.i.tious, was overcome by the fascination of the man when one was under his personal influence; yet the impression of indirectness and duplicity which he caused generally, together with his indifference to slander and calumny,[985] made it possible for his enemies, before his Western venture, to build up about his name a structure of public suspicion, and even hatred, wholly unjustified by the facts.

The United States District Attorney laid before Marshall the record in the case of Bollmann and Swartwout in the Supreme Court, and Perkins proudly described how he had captured Burr and brought him to Richmond.

Hay promptly moved to commit the accused man to jail on the charges of treason and misdemeanor. The attorneys on both sides agreed that on this motion there must be argument. Marshall admitted Burr to bail in the sum of five thousand dollars for his appearance the next day at the court-room in the Capitol.

When Marshall opened court the following morning, the room was crowded with spectators, while hundreds could not find admittance. Hay asked that the court adjourn to the House of Delegates, in order that as many as possible of the throng might hear the proceedings. Marshall complied, and the eager mult.i.tude hurried pell-mell to the big ugly hall, where thenceforth court was held throughout the tedious, exasperating months of this historic legal conflict.

Hay began the argument. Burr's cipher letter to Wilkinson proved that he was on his way to attack Mexico at the time his villainy was thwarted by the patriotic measures of the true-hearted commander of the American Army. Hay insisted that Burr had intended to take New Orleans and "make it the capital of his empire." The zealous young District Attorney "went minutely into ... the evidence." The prisoner's stealthy "flight from justice" showed that he was guilty.

John Wickham, one of Burr's counsel, answered Hay. There was no testimony to show an overt act of treason. The alleged Mexican project was not only "innocent, but meritorious"; for everybody knew that we were "in an intermediate state between war and peace" with Spain. Let Marshall recall Jefferson's Message to Congress on that point. If war did not break out, Burr's expedition was perfectly suitable to another and a wholly peaceful enterprise, and one which the President himself had "recommended"--namely, "strong settlements beyond the Mississippi."[986]

Burr himself addressed the court, not, he said, "to remedy any omission of his counsel, who had done great justice to the subject," but "to repel some observations of a personal nature." Treason meant deeds, yet he was being persecuted on "mere conjecture." The whole country had been unjustly aroused against him. Wilkinson had frightened the President, and Jefferson, in turn, had alarmed the people.

Had he acted like a guilty man, he asked? Briefly and modestly he told of his conduct before the courts and grand juries in Kentucky and Mississippi, and the result of those investigations. The people among whom he journeyed saw nothing hostile or treasonable in his expedition.

His "flight"? That had occurred only when he was denied the protection of the laws and when armed men, under illegal orders of an autocratic military authority, were seeking to seize him violently. Then, and only then, acting upon the advice of friends and upon his own judgment, had he "abandoned a country where the laws ceased to be the sovereign power." Why had the guards who brought him from Alabama to Richmond "avoided every magistrate on the way"? Why had he been refused the use of pen, ink, and paper--denied even the privilege of writing to his daughter? It was true that when, in South Carolina, the soldiers chanced upon three civilians, he did indeed "demand the interposition of the civil authority." Was that criminal? Was it not his right to seek to be delivered from "military despotism, from the tyranny of a military escort," and to be subjected only to "the operation of the laws of his country"?[987]

On Wednesday, April 1, Marshall delivered the second of that series of opinions which established the boundaries of the American law of treason and rendered the trial of Aaron Burr as notable for the number and the importance of decisions made from the bench during the progress of it, as it was famous among legal duels in the learning, power, and eloquence of counsel, in the influences brought to bear upon court and jury, and in the dramatic setting and the picturesque incidents of the proceedings.