The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

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, Constitutional crimes. "The framers of our Constitution … 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 passions 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 constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional 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 assemblage 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."939 He then applied these principles to the testimony. First he took up the deposition of Eaton940 which, he said, indicated that the invasion of Mexico "was the immediate object"941 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 analyzed Wilkinson's version of Burr's confidential cipher dispatch.942 It was so vague, said the Chief Justice, that it "furnishes no distinct view of the design of the writer." But the "coöperation" 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 pass 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?"943

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.'"944 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."945 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 assemblage 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 assembling thousands of armed men to attack Mexico, did not prove that Burr had gathered an army to make war on the United States.946 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 asserted that there must be "unequivocal evidence" of "an actual assemblage."

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 assembling 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."947

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 assertions 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.948

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 Constitution "taking away all jurisdiction of the Supreme Court in criminal cases." There was talk of impeaching every occupant of the Supreme Bench.949

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."950 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."951 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.

James Elliot of Vermont said that "most of the privileges intended to be secured" by the Fourth, Fifth, and Sixth Amendments952 "have recently been denied … at the point of the bayonet, and under circumstances 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 Constitutional scene of inquisition and trial, to place them particularly under the eye of the National Government"?953 Not only was the swish of the party whip heard in the House, he asserted, but members who would not desert the fundamentals of liberty must "be prepared for the insinuation that we countenance treason, and sympathize with traitors."954

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."955 Randolph assailed 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."956 The Declaration of Independence had assigned 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 Constitution," exclaimed Randolph, "and under a republican administration, and men are transported without the color of law, nearly as far as across the Atlantic."957

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 passage 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.958

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 Cumberland in two unarmed boats, had joined the remainder of the little expedition.

He then met for the first time the young adventurers whom Blennerhassett, 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 Cumberland 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.959

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 flotilla960 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 Massac, Captain Bissel, in answer to a letter of inquiry from Andrew Jackson, assured him that "there has nothing the least alarming appeared"; Burr had passed with a few boats "having nothing on board that would even suffer a conjecture, more than a man bound to market."961 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 Cumberland; 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."962

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 Washita 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 Washington – 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. Bloody 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."963

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 promptitude 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,964 and the major part of these are boys, or young men just from school," wholly unaware of Burr's evil designs.965

The Legislature of the Territory of Orleans had just convened. Governor Claiborne recommended that a law be passed 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."966

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 asserted 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.967

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 Cæsar 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,968 and men "armed with Dirks & Pistolls" were dispatched to assassinate him.969 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 assured 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.970

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 Washita 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."971

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 Washington County,972 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,973 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.974 The drenched and shivering 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 pass 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.975

Two weeks passed 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 Washington, 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 Washington. 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.976 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 passing 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."