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

This young man made a deep impression of honesty and straightforwardness on all who came in contact with him. (See testimony of Tazewell, Cabell, and Brokenbrough, Annals, 10th Cong. 1st Sess. 633.) "Swartwout is a fine genteel intelligible young man." (Plumer to Mason, Jan. 30, 1807, Plumer MSS. Lib. Cong.)

Notwithstanding his frank and engaging manner, Swartwout was at heart a basely dishonest person. Thirty years later, when Collector of the Port of New York, he embezzled a million and a quarter dollars of the public funds. (Bassett: Life of Andrew Jackson, ii, 452-53.)

872

Wilkinson's dispatch, Oct. 20, 1806, "Letters in Relation," MSS. Lib. Cong. Wilkinson's dispatch to Jefferson was based on the revelations which he pretended to have drawn from Swartwout.

873

The dispatch would go on file in the War Department; the "personal and confidential" communication to Jefferson would remain in the President's hands.

874

Wilkinson to Jefferson, Oct. 21, 1806, "Letters in Relation," MSS. Lib. Cong.

875

See infra, chap. viii.

876

Jefferson's Cabinet Memorandum, Oct. 22, 1806, as quoted in Adams: U.S. iii, 278-80.

877

Ib. Oct. 25, 1806, as quoted in Adams: U.S. iii, 281.

878

Jefferson's Proclamation, Nov. 27, 1806, Works, Ford, x, 301-02; Wilkinson: Memoirs, ii, Appendix xcvi.

879

Tyler had been in the New York Legislature with Burr and there became strongly attached to him. (See Clark: Onondaga.) He went to Beaver, Pennsylvania, in the interests of Burr's enterprise, and from there made his way to Blennerhassett's island. Tyler always maintained that the sole object of the expedition was to settle the Washita lands. (See his pathetic letter asserting this to Lieutenant Horatio Stark, Jan. 23, 1807, "Letters in Relation," MSS. Lib. Cong.)

880

Hildreth, v, 619; Parton: Burr, 436-38.

881

Jackson to Claiborne, Nov. 12, 1806, Parton: Jackson, i, 319; and see McCaleb, 253.

882

Adams: U.S. iii, 287; Parton: Jackson, i, 320-21.

883

Parton inaccurately says that the Proclamation reached Nashville after Burr's departure. (Parton: Jackson, i, 322.)

884

Adams: U.S. iii, 288; Parton: Jackson, i, 321.

885

For instance, at Nashville, Burr was burnt in effigy in the public square. (Parton: Jackson, i, 322.) At Cincinnati an amusing panic occurred: three merchant scows loaded with dry goods were believed to be a part of Burr's flotilla of war vessels about to attack the town. The militia was called out, citizens organized for defense, the adjacent country was appealed to for aid. (See McCaleb, 248-49.)

886

Wilkinson to Jefferson, Nov. 12, 1806, Wilkinson: Memoirs, ii, Appendix C.

887

Iturrigaray to Cevallos, March 12, 1807, as quoted in McCaleb, 169; and see Shepherd in Am. Hist. Rev. ix, 533 et seq.

The thrifty General furnished Burling with a passport through the posts he must pass. ("Letters in Relation," as quoted in McCaleb, 166.)

Credentials to the Spanish official were also given Burling by one of Wilkinson's friends, Stephen Minor of Natchez, the man who had first set on foot the rumor of Burr's secession intentions. He was also in the pay of Spain. (Ib. 166-67.)

The Spaniards aided Burling on his journey in every way possible. (Herrera to Cordero, Dec. 1, 1806, as quoted in ib. 167-68.)

888

Iturrigaray to Cevallos, March 12, 1807, as quoted in McCaleb, 168-69.

889

Ib. 171.

890

Wilkinson to Jefferson, March 12, 1807, "Letters in Relation," MSS. Lib. Cong.

891

Wilkinson to Cushing, Nov. 7, 1806, Wilkinson: Memoirs, ii, Appendix xcix.

892

Wilkinson to Freeman, Wilkinson: Memoirs, ii, Appendix xcix.

893

Wilkinson to Claiborne, Nov. 12, 1806, ib. 328.

894

Wilkinson to Claiborne, Dec. 6 and 7, 1806, as quoted in McCaleb, 205-06.

895

Ib. 209-10.

896

Wilkinson to Clark, Dec. 10, 1806, Clark: Proofs, 150; also McCaleb, 212; and see Wilkinson to Claiborne, Dec. 15, 1806, as quoted in McCaleb, 213-14.

897

Swartwout was treated in a manner peculiarly outrageous. Before his arrest Wilkinson had borrowed his gold watch, and afterward refused to return it. When the soldiers seized Swartwout they "hurried" him across the river, lodged him "for several days & nights in a poor inhospitable shed – & deprived of the necessaries of life."

Finally, when ordered to march with his guard – and being refused any information as to where he was to be taken – the prisoner declared that he was to be murdered and leapt into the river, crying, "I had as well die here as in the woods," whereupon "the Lt drew up his file of six men & ordered them to shoot him. The soldiers directed their guns at him & snapt them, but owing to the great rain, 3 of the guns flashed in the pan, & the other's would not take fire. The men pursued & took him. But for the wetness of the powder this unfortunate young man must have be[en] murdered in very deed."

Swartwout was not permitted to take his clothing with him on the ship that carried him to Baltimore; and the officer in charge of him was under orders from Wilkinson to put his prisoner in chains during the voyage. (Plumer, Feb. 21, 1807, "Register," Plumer MSS. Lib. Cong.)

898

Wilkinson's return reported in the Orleans Gazette, Dec. 18, 1806, as quoted in McCaleb, 217. It does not appear what return was made in the matter of the application for a writ of habeas corpus in favor of Swartwout.

899

Wilkinson to Jefferson, printed in National Intelligencer, Jan. 23, 1807, as quoted in McCaleb, 218.

900

This was one cause of Jefferson's hatred of Livingston. For the celebrated litigation between these men and the effect of it on Marshall and Jefferson, see vol. iv, chap. ii, of this work.

901

McCaleb, 219-21.

902

Hildreth, v, 613.

903

Plumer's résumé of a letter from Adair to Clay. (Feb. 20, 1807, "Register," Plumer MSS. Lib. Cong.)

For this outrage Adair, within a year, brought suit against Wilkinson for false imprisonment. This was bitterly fought for ten years, but finally Adair secured judgment for $2500, "against which Wilkinson was indemnified by Congress." (Hildreth, V, 627.)

For three or four years Adair continued in public disfavor solely because of his supposed criminal connection with Burr, of which his arrest by Wilkinson convinced the inflamed public mind. He slowly recovered, however, rendered excellent service as an officer in the War of 1812, and under Jackson commanded the Kentucky troops at the battle of New Orleans with distinguished gallantry. In 1820 the old veteran was elected Governor of Kentucky. Afterward he was chosen Representative in Congress from his district.

904

Plumer's résumé of Adair's letter to Clay, supra, note 1. Every word of Adair's startling account of his arrest was true. It was never even denied. John Watkins told Wilkinson of a conversation with Adair immediately after the latter's arrival which showed that nobody had reason to fear Burr: "He [Adair] observed … that the bubble would soon burst & signified that the claims were without foundation & that he had seen nothing like an armament or preparations for a warlike expedition." (Watkins to Wilkinson, Jan. 14, 1807, Wilkinson MSS. Chicago Hist. Soc.)

Professor Cox has suggested to the author that Wilkinson's summary arrest of Adair was to prevent the further circulation of his statement.

905

"During the disturbances of Burr the aforesaid general [Wilkinson] has, by means of a person in his confidence, constantly maintained a correspondence with me, in which he has laid before me not only the information which he acquired, but also his intentions for the various exigencies in which he might find himself." (Folch to the Governor-General of Cuba, June 25, 1807, as quoted by Cox in Am. Hist. Rev. x, 839.)

906

Jefferson's Message, Dec. 2, 1806, Annals, 9th Cong. 2d Sess. 12; Richardson, i, 406.

907

"We have been, & still are, both amused & perplexed with the rumours, reports, & conjectures respecting Aaron Burr. They are numerous, various, & contradictory… I must have plenary evidence before I believe him capable of committing the hundredth part of the absurd & foolish things that are ascribed to him… The president of the United States, a day or two since, informed me that he knew of no evidence sufficient to convict him of either high crimes or misdemeanors." (Plumer to Jeremiah Mason, Jan. 4, 1807, Plumer MSS. Lib. Cong.) See also Plumer to Langdon, Dec. 1806, and to Livermore, Jan. 19, 1807, Plumer MSS. loc. cit.

These letters of Plumer's are most important. They state the general opinion of public men, especially Federalists, as expressed in their private conversations.

"I never believed him to be a Fool," wrote John Adams to his most intimate friend. "But he must be an Idiot or a Lunatick if he has really planned and attempted to execute such a Project as is imputed to him." Politicians have "no more regard to Truth than the Devil… I suspect that this Lying Spirit has been at Work concerning Burr… But if his guilt is as clear as the Noon day Sun, the first Magistrate ought not to have pronounced it so before a Jury had tryed him." (Adams to Rush, Feb. 2, 1807, Old Family Letters, 128-29.) See also Adams to Pickering, Jan. 1, 1807, Pickering MSS. Mass. Hist. Soc.; and Peters to Pickering, Feb. 1807, Pickering MSS. loc. cit.

Marshall undoubtedly shared the common judgment, as his conduct at Burr's trial abundantly shows.

908

Annals, 9th Cong. 2d Sess. 336.

909

Ib. 347.

910

Ib. 357-58.

911

Annals, 9th Cong. 2d Sess. 39-41. Jefferson's Message, Jan. 22, 1807, Richardson, i, 412-17.

912

Annals, 9th Cong. 2d Sess. 43; Richardson, i, 416.

913

Annals, 9th Cong. 2d Sess. 40. (Italics the author's.)

914

"Wilkinson's letter is a curiosity… Tis Don Adriano de Armado the second." (J. Q. Adams to L. C. Adams, Dec. 8, 1806, Writings, J. Q. A.: Ford, iii, footnote to 157.)

915

Plumer, Jan. 22, 1807, "Diary," Plumer MSS. Lib. Cong.

Senator Plumer wrote his son, concerning Wilkinson's account of Burr's letter: "I am satisfied he has not accurately decyphered it. There is more of Wilkinsonism than of Burrism in it." (Plumer to his son, Jan. 24, 1807, Plumer MSS. Lib. Cong.)

916

Plumer, Jan. 30, 1807, "Diary," Plumer MSS. Lib. Cong. Senator Plumer adds: "The government are apprehensive that the arts & address of Bollman, who effected the liberation of the Marquis de Lafayette from the strong prison of Magdeburge, may now find means to liberate himself."

917

Clay to Prentiss, Feb. 15, 1807, Priv. Corres.: Colton, 15; also Works: Colton, iv, 14.

918

Plumer, Feb. 20, 1807, "Register," Plumer MSS. Lib. Cong.

919

Plumer to Mason, Jan. 30, 1807, Plumer MSS. Lib. Cong.

Plumer's account of the proceedings is trustworthy. He was an eminent lawyer himself, was deeply interested in the case, and was writing to Jeremiah Mason, then the leader of the New England bar.

920

Eaton: Prentiss, 396.

921

See supra, 303-05.

Three days before he made oath to the truth of this story, Eaton's claim against the Government was referred to a committee of the House (see Annals, 9th Cong. 2d Sess. 383), and within a month from the time the historic affidavit was made, a bill was passed, without debate, "authorizing the settlement of the accounts between the United States and William Eaton."

John Randolph was suspicious: "He believed the bill had passed by surprise. It was not so much a bill to settle the accounts of William Eaton, as to rip up the settled forms of the Treasury, and to transfer the accountable duties of the Treasury to the Department of State. It would be a stain upon the Statute Book." (Ib. 622.)

The very next week after the passage of this measure, Eaton received ten thousand dollars from the Government. (See testimony of William Eaton, Trials of Colonel Aaron Burr: Robertson, stenographer, i, 483.)

922

"Eaton's story … has now been served up in all the newspapers… The amount of his narrative is, that he advised the President to send Burr upon an important embassy, because!!! he had discovered the said Burr to be a Traitor to his country." (J. Q. Adams to L. C. Adams, Dec. 8, 1806, Writings, J. Q. A.: Ford, iii, footnote to 157.)

923

Plumer, Jan. 30, 1807, "Diary," Plumer MSS. Lib. Cong.

924

J. Q. Adams to his father, Jan. 30, 1807, Writings, J. Q. A.: Ford, iii, 159.

925

Feb. 28, 1801, Journal Exec. Proc. Senate, i, 387. Cranch was so excellent a judge that, Federalist though he was, Jefferson reappointed him February 21, 1806. (Ib. ii, 21.)

926

Jefferson appointed Nicholas Fitzhugh of Virginia, November 22, 1803 (ib. i, 458), and Allen Bowie Duckett of Maryland, February 28, 1806 (ib. ii, 25).

927

J. Q. Adams to his father, Jan. 27, 1807, Writings, J. Q. A.: Ford, iii, 158.

928

Annals, 9th Cong. 2d Sess. 44.

929

On Friday afternoon the House adjourned till Monday morning.

930

Annals, 9th Cong. 2d Sess. 402.

931

Annals, 9th Cong. 2d Sess. 404-05.

932

Ib. 410. Eppes was Jefferson's son-in-law.

933

Ib. 412.

934

Ib. 414-15.

935

4 Cranch, 76.

936

4 Cranch, 107. Justice Chase, who was absent because of illness, concurred with Johnson. (Clay to Prentiss, Feb. 15, 1807, Priv. Corres.: Colton, 15; also Works: Colton, iv, 15.)

Cæsar A. Rodney, Jefferson's Attorney-General, declined to argue the question of jurisdiction.

937

4 Cranch, 125-37.

938

4 Cranch, 125-26.

939

4 Cranch, 127.

940

See supra, 303-05.

941

4 Cranch, 128-29.

942

See Appendix D.

In his translation Wilkinson carefully omitted the first sentence of Burr's dispatch: "Yours, post-marked 13th of May, is received." (Parton: Burr, 427.) This was not disclosed until the fact was extorted from Wilkinson at the Burr trial. (See infra, chap. viii.)

943

4 Cranch, 131-32.

944

4 Cranch, 132-33.

945

Wilkinson declared in his affidavit that he "drew" from Swartwout the following disclosures: "Colonel Burr, with the support of a powerful association, extending from New York to New Orleans, was levying an armed body of seven thousand men from the state of New York and the Western states and Territories" to invade Mexico which "would be revolutionized, where the people were ready to join them."

"There would be some seizing, he supposed at New Orleans"; he "knew full well" that "there were several millions of dollars in the bank of this place," but that Burr's party only "meant to borrow and would return it – they must equip themselves at New Orleans, etc., etc." (Annals, 9th Cong. 2d Sess. 1014-15.)

Swartwout made oath that he told Wilkinson nothing of the kind. The high character which this young man then bore, together with the firm impression of truthfulness he made on everybody at that time and during the distracting months that followed, would seem to suggest the conclusion that Wilkinson's story was only another of the brood of falsehoods of which that fecund liar was so prolific.

946

4 Cranch, 133-34.

947

4 Cranch, 135.

948

4 Cranch, 136.

949

Feb. 21, 1807, Memoirs, J. Q. A.: Adams, i, 459.

950

Annals, 9th Cong. 2d Sess. 472.

951

Ib. 506.

952

They are: "Article IV. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

"Article V. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

"Article VI. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence."

953

Annals, 9th Cong. 2d Sess. 531.

954

Ib. 532-33.

955

Ib. 535.

956

Annals, 9th Cong. 2d Sess. 536.

957

Ib. 537-38.

958

Ib. 589.

959

Nearly all the men had been told that they were to settle the Washita lands; and this was true, as far as it went. (See testimony of Stephen S. Welch, Samuel Moxley, Chandler Lindsley, John Mulhollan, Hugh Allen, and others, Annals, 10th Cong. 1st Sess. 463 et seq.)

960

The boats were very comfortable. They were roofed and had compartments for cooking, eating, and sleeping. They were much like the modern house boat.

961

Bissel to Jackson, Jan. 5, 1807, Annals, 9th Cong. 2d Sess. 1017-18.

962

Murrell to Jackson, Jan. 8, 1807, Annals, 9th Cong. 2d Sess. 1017.

963

Mead to the Secretary of War, Jan. 13, 1807, ib. 1018.

964

Burr had picked up forty men on his voyage down the Mississippi.

965

Mead to the War Department, Jan. 19, 1807, Annals, 9th Cong. 2d Sess. 1019.

966

McCaleb, 233-36. For the discussion over this resolution see Debate in the House of Representatives of the Territory of Orleans, on a Memorial to Congress, respecting the illegal conduct of General Wilkinson. Both sides of the question were fully represented. See also Cox, 194, 200, 206-08.

967

Return of the Mississippi Grand Jury, Feb. 3, reported in the Orleans Gazette, Feb. 20, 1807, as quoted in McCaleb, 272-73.

968

Annals, 10th Cong. 1st Sess. 528-29, 536, 658-61.

969

Deposition of George Peter, Sept. 10, 1807, Am. State Papers, Misc. i, 566; and see Quarterly Pub. Hist. and Phil. Soc. of Ohio, ix, Nos. 1 and 2, 35-38; McCaleb, 274-75; Cox, 200-08.

970

McCaleb, 277.

971

Ib.

972

In that part of the Territory which is now the State of Alabama.

973

Perkins had read and studied the description of Burr in one of the Proclamations which the Governor of Mississippi had issued. A large reward for the capture of Burr was also offered, and on this the mind of Perkins was now fastened.

974

Pickett: History of Alabama, 218-31.

975

Yet, five months afterward, Jefferson actually wrote Captain Gaines: "That the arrest of Colo. B. was military has been disproved; but had it been so, every honest man & good citizen is bound, by any means in his power, to arrest the author of projects so daring & dangerous." (Jefferson to Gaines, July 23, 1807, Works: Ford, x, 473.)

976

Pickett, 224-25.

977

For the account of Burr's arrest and transfer from Alabama to Richmond, see Pickett, 218-31. Parton adopts Pickett's narrative, adding only one or two incidents; see Parton: Burr, 444-52.

978

Randolph to Nicholson, March 25, 1807, Adams: Randolph, 220.

979

The warrant was written by Marshall himself. (MS. Archives of the United States Court, Richmond, Va.)

980

Burr Trials, i, 1.

981

Burr Trials, i, 1.

982

The first thing that Burr did upon his arrival at Richmond was to put aside his dirty, tattered clothing and secure decent attire.

983

Marshall's eyes were "the finest ever seen, except Burr's, large, black and brilliant beyond description. It was often remarked during the trial, that two such pairs of eyes had never looked into one another before." (Parton: Burr, 459.)

984

It was a rule of Burr's life to ignore attacks upon him. (See supra, 280.)

985

Burr Trials, i, 5.

986

Burr Trials, i, 6-8.

987

At the noon hour "a friend" told the Chief Justice of the impression produced, and Marshall hastened to forestall the use that he knew Jefferson would make of it. Calling the reporters about him, he "explicitly stated" that this passage in his opinion "had no allusion to the conduct of the government in the case before him." It was, he assured the representatives of the press, "only an elucidation of Blackstone." (Burr Trials, i, footnote to 11.)

988

Burr Trials, i, 11-18.

989

Ib. 19.

990

Burr Trials, i, 20. His "property," however, represented borrowed money.

991

Burr to his daughter, May 15, 1807, Davis, ii, 405-06.

992

Burr to his daughter, May 15, 1807, Davis, ii, 405-06.