FOOTNOTES:
[917] 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."
[918] Clay to Prentiss, Feb. 15, 1807, Priv. Corres.: Colton, 15; also Works: Colton, iv, 14.
[919] Plumer, Feb. 20, 1807, "Register," Plumer MSS. Lib. Cong.
[920] 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.
[921] Eaton: Prentiss, 396.
[922] 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.)
[923] "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.)
[924] Plumer, Jan. 30, 1807, "Diary," Plumer MSS. Lib. Cong.
[925] J. Q. Adams to his father, Jan. 30, 1807, Writings, J. Q. A.: Ford, iii, 159.
[926] 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.)
[927] Jefferson appointed Nicholas Fitzhugh of Virginia, November 22, 1803 (ib. i, 458), and Allen Bowie Duckett of Maryland, February 28, 1806 (ib. ii, 25).
[928] J. Q. Adams to his father, Jan. 27, 1807, Writings, J. Q. A.: Ford, iii, 158.
[929] Annals, 9th Cong. 2d Sess. 44.
[930] On Friday afternoon the House adjourned till Monday morning.
[931] Annals, 9th Cong. 2d Sess. 402.
[932] Annals, 9th Cong. 2d Sess. 404-05.
[933] Ib. 410. Eppes was Jefferson's son-in-law.
[934] Ib. 412.
[935] Ib. 414-15.
[936] 4 Cranch, 76.
[937] 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.
[938] 4 Cranch, 125-37.
[939] 4 Cranch, 125-26.
[940] 4 Cranch, 127.
[941] See supra, 303-05.
[942] 4 Cranch, 128-29.
[943] 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.)
[944] 4 Cranch, 131-32.
[945] 4 Cranch, 132-33.
[946] 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.
[947] 4 Cranch, 133-34.
[948] 4 Cranch, 135.
[949] 4 Cranch, 136.
[950] Feb. 21, 1807, Memoirs, J. Q. A.: Adams, i, 459.
[951] Annals, 9th Cong. 2d Sess. 472.
[952] Ib. 506.
[953] 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."
[954] Annals, 9th Cong. 2d Sess. 531.
[955] Ib. 532-33.
[956] Ib. 535.
[957] Annals, 9th Cong. 2d Sess. 536.
[958] Ib. 537-38.
[959] Ib. 589.
[960] 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.)
[961] The boats were very comfortable. They were roofed and had compartments for cooking, eating, and sleeping. They were much like the modern house boat.
[962] Bissel to Jackson, Jan. 5, 1807, Annals, 9th Cong. 2d Sess. 1017-18.
[963] Murrell to Jackson, Jan. 8, 1807, Annals, 9th Cong. 2d Sess. 1017.
[964] Mead to the Secretary of War, Jan. 13, 1807, ib. 1018.
[965] Burr had picked up forty men on his voyage down the Mississippi.
[966] Mead to the War Department, Jan. 19, 1807, Annals, 9th Cong. 2d Sess. 1019.
[967] 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.
[968] Return of the Mississippi Grand Jury, Feb. 3, reported in the Orleans Gazette, Feb. 20, 1807, as quoted in McCaleb, 272-73.
[969] Annals, 10th Cong. 1st Sess. 528-29, 536, 658-61.
[970] 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.
[971] McCaleb, 277.
[972] Ib.
[973] In that part of the Territory which is now the State of Alabama.
[974] 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.
[975] Pickett: History of Alabama, 218-31.
[976] 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.)
[977] Pickett, 224-25.
[978] 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.
[979] Randolph to Nicholson, March 25, 1807, Adams: Randolph, 220.
[980] The warrant was written by Marshall himself. (MS. Archives of the United States Court, Richmond, Va.)
[981] Burr Trials, i, 1.
[982] Burr Trials, i, 1.
[983] The first thing that Burr did upon his arrival at Richmond was to put aside his dirty, tattered clothing and secure decent attire.
[984] 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.)
[985] It was a rule of Burr's life to ignore attacks upon him. (See supra, 280.)
[986] Burr Trials, i, 5.
[987] Burr Trials, i, 6-8.
[988] 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.)
[989] Burr Trials, i, 11-18.
[990] Ib. 19.
[991] Burr Trials, i, 20. His "property," however, represented borrowed money.
[992] Burr to his daughter, May 15, 1807, Davis, ii, 405-06.
[993] Burr to his daughter, May 15, 1807, Davis, ii, 405-06.
[994] Giles to Jefferson, April 6, 1807, Anderson, 110. The date is given in Jefferson to Giles, April 20, 1807, Works: Ford, x, 383.
[995] Parton: Burr, 455.
[996] "Altho' at first he proposed a separation of the Western country, ... yet he very early saw that the fidelity of the Western country was not to be shaken and turned himself wholly towards Mexico and so popular is an enterprize on that country in this, that we had only to be still, & he could have had followers enough to have been in the city of Mexico in 6. weeks." (Jefferson to James Bowdoin, U.S. Minister to Spain, April 2, 1807, Works: Ford, x, 381-82.)
In this same letter Jefferson makes this amazing statement: "If we have kept our hands off her [Spain] till now, it has been purely out of respect for France.... We expect therefore from the friendship of the emperor [Napoleon] that he will either compel Spain to do us justice, or abandon her to us. We ask but one month to be in ... the city of Mexico."
[997] McCaleb, 325.
[998] See infra, 476-77; also vol. iv, chap. i, of this work.
[999] See Nicholson to Monroe, April 12, 1807, Adams: Randolph, 216-18. Plumer notes "the rancor of his personal and political animosities." (Plumer, 356.)
[1000] Jefferson to James Bowdoin, U.S. Minister to Spain, April 2, 1807, Works: Ford, x, 382.
[1001] This was flatly untrue. No process to obtain evidence or to aid the prosecution in any way was ever denied the Administration. This statement of the President was, however, a well-merited reflection on the tyrannical conduct of the National judges in the trials of men for offenses under the Sedition Law and even under the common law. (See supra, chap. i.) But, on the one hand, Marshall had not then been appointed to the bench and was himself against the Sedition Law (see vol. ii, chap. xi, of this work); and, on the other hand, Jefferson had now become as ruthless a prosecutor as Chase or Addison ever was.
[1002] These were: "1. The enlistment of men in a regular way; 2. the regular mounting of guard round Blennerhassett's island; ... 3. the rendezvous of Burr with his men at the mouth of the Cumberland; 4. his letter to the acting Governor of Mississippi, holding up the prospect of civil war; 5. his capitulation, regularly signed, with the aides of the Governor, as between two independent and hostile commanders."
[1003] The affidavits in regard to what happened on Blennerhassett's island would necessarily be lodged in Richmond, since the island was in Virginia and the United States Court for the District of that State alone had jurisdiction to try anybody for a crime committed within its borders.
Even had there been any doubt as to where the trial would take place, the Attorney-General would have held the affidavits pending the settlement of that point; and when the place of trial was determined upon, promptly dispatched the documents to the proper district attorney.
[1004] The reference is to the amendment to the Constitution urged by Jefferson, and offered by Randolph in the House, providing that a judge should be removed by the President on the address of both Houses of Congress. (See supra, chap. iv, 221.)
[1005] Jefferson to Giles, April 20, 1807, Works: Ford, x, 383-88.
[1006] See Parton: Burr, 456-57. "The real prosecutor of Aaron Burr, throughout this business, was Thomas Jefferson, President of the United States, who was made President of the United States by Aaron Burr's tact and vigilance, and who was able therefore to wield against Aaron Burr the power and resources of the United States." (Ib. 457.) And see McCaleb, 361.
[1007] Jefferson to the Secretary of State, April 14, 1807, Works: Ford, x, 383.
[1008] Jenkinson: Aaron Burr, 282-83.
[1009] Jefferson to "Bollman," Jan. 25, 1807, Davis, ii, 388.
[1010] Bollmann's narrative, Davis, ii, 389.
[1011] McCaleb, 331.
[1012] Jefferson to the United States District Attorney for Virginia, May 20, 1807, Works: Ford, x, 394-401.
Bollmann, in open court, scornfully declined to accept the pardon. (See infra, 452.)
[1013] Wilkinson was then en route by sea to testify against Burr before the grand jury.
[1014] Mordecai: Richmond in By-Gone Days, 68.
[1015] According to a story, told more than a century after the incident occurred, Marshall did not know, when he accepted Wickham's invitation, that Burr was to be a guest, but heard of that fact before the dinner. His wife, thereupon, advised him not to go, but, out of regard for Wickham, he attended. (Thayer: John Marshall, 80-81.)
This tale is almost certainly a myth. Professor Thayer, to whom it was told by an unnamed descendant of Marshall, indicates plainly that he had little faith in it.
The facts that, at the time, even the Enquirer acquitted Marshall of any knowledge that Burr was to be present; that the prudence of the Chief Justice was admitted by his bitterest enemies; that so gross an indiscretion would have been obvious to the most reckless; that Marshall, of all men, would not have embarrassed himself in such fashion, particularly at a time when public suspicion was so keen and excitement so intense—render it most improbable that he knew that Burr was to be at the Wickham dinner.
[1016] Enquirer, April 10 and 28, 1807.