Two thirds of our speeches have been addressed to the people. (George Hay.)
It would be difficult or dangerous for a jury to acquit Burr, however innocent they might think him. (Marshall.)
While Washington was still agitated by the President's Special Message, the long winter voyage of Bollmann and Swartwout ended at Baltimore, and Burr's dazed dispatch-bearers were brought by military guards to the National Capital. There, on the evening of January 22, they were thrown into the military prison at the Marine Barracks, and "guarded, night and day, by an officer & 15 soldiers of the Marine Corps."[917]
The ship bearing James Alexander had made a swift passage. On its arrival, friends of this prisoner applied to Joseph F. Nicholson, now United States Judge at Baltimore, for a writ of habeas corpus. Alexander was at once set free, there being not the slightest evidence to justify his detention.[918]
A week or two later the schooner Thatcher, on board which was the disconsolate and dumbfounded General Adair—Wilkinson's fourth prisoner to be sent to Jefferson—tied up to its dock at Baltimore and he was delivered "over to the commander of the fort at that city." But a passenger on the vessel, "a stranger ... of his own accord ... assured [Adair] he would procure a writ of Habeas Corpus for him." Adair also was "immediately liberated, ... there being no evidence against him."[919]
After the incarceration of Bollmann and Swartwout in Washington, attorneys were secured for them and an application was made to Judge William Cranch, United States Judge for the District of Columbia, for a writ of habeas corpus in their behalf, directed to Colonel Wharton, who was in command at Washington. Wharton brought the luckless prisoners into court and stated that "he held them under the orders of his superior officer. They were then taken upon a bench warrant charging them with treason which superseded the writ. A motion was made by the prisoners council ... that they be discharged. The Court required evidence of their probable guilt."[920]
Jefferson now took a hand in the prosecution. He considered Wilkinson's affidavit insufficient[921] to hold Bollmann and Swartwout, and, in order to strengthen the case against them, secured from Eaton an affidavit stating the dire revelations which Eaton alleged Burr had made to him a year before.[922] Eaton's theatrical story was thus given to the press,[923] and not only fortified the public conviction that a conspiracy to destroy the Union had been under way, but also horrified the country by the account of Burr's intention to assassinate Jefferson.
The Attorney-General and the United States District Attorney, representing the Government, demanded that Bollmann and Swartwout be held; Charles Lee, Robert Goodloe Harper, and Francis S. Key, attorneys for the prisoners, insisted that they be released. Long was the argument and "vast" the crowd that heard it; "collected & firm" was the appearance of the accused men.[924] So universal was the curiosity, says John Quincy Adams, that the Senate was "scarcely able here to form a quorum ... and the House ... actually adjourned."[925] The court decided that Bollmann and Swartwout should be sent back to prison "for trial without bail or main-prize." For the first time in our history a National court divided on political grounds. Judge Cranch, a Federalist first appointed by President Adams,[926] thought that the prisoners should be discharged, but was overruled by his associates, Judges Nicholas Fitzhugh and Allen Bowie Duckett, Republicans appointed by Jefferson.[927]
But John Marshall and the Supreme Court had yet to be reckoned with. Counsel for the reimprisoned men at once applied to that tribunal for a writ of habeas corpus, and Marshall directed process to the jailer to show cause why the writ should not issue.
An extreme and violent step was now taken to end the proceedings in court. On Friday, January 23, 1807, the day after the President's Special Message denouncing Burr had been read in the Senate, Senator Giles, who, it should be repeated, was Jefferson's personal representative in that body, actually moved the appointment of a committee to draft a bill "to suspend the privilege of the writ of habeas corpus." Quickly Giles himself reported the measure, the Senate suspended its rules, and the bill was hurriedly passed, only Bayard of Delaware voting against it.[928] More astounding still, Giles recommended, and the Senate adopted, a special message to the House, stating the Senate's action "which they think expedient to communicate to you in confidence," and asking the popular branch of Congress to pass the Senate bill without delay.[929]