“On the whole,” said the Message, “the fugitives from the Ohio, with their associates from Cumberland, or any other place in that quarter, cannot threaten serious danger to the city of New Orleans.”
Yet a conspiracy against the Union existed; the President communicated Burr’s cipher letters; he proclaimed Burr’s expectation of seizing upon New Orleans, as well as the panic prevailing there; and he approved Wilkinson’s arrest of Bollman and Swartwout. Finally, the Message spoke of the people in New Orleans in a tone of confidence quite different from that of Wilkinson’s despatches, communicated with the Message itself.[242]
The Senate interpreted the Message in the sense it was doubtless meant to bear,—as a request from the President for support. Bollman and Swartwout, who would arrive in Washington within a few days or hours, had been illegally arrested, and they, as well as the other conspirators, could not without special legislation be held longer in custody. Giles at once introduced a Bill suspending for three months the writ of habeas corpus with respect to such persons; and the necessity of this measure seemed so obvious to the Senate that the Rules were suspended by unanimous consent, and the Bill was passed on the same day through all its stages. Bayard alone voted against it.[243]
Monday, January 26, the Bill was brought before the House, and Eppes of Virginia, the President’s son-in-law, immediately moved its rejection. The debate that followed was curious, not only on account of the constitutional points discussed, but also on account of the division of sentiment among the President’s friends, who quoted the Message to prove that there was no danger to public safety such as called for a suspension of habeas corpus, and appealed to the same Message to prove the existence of a more wanton and malignant insurrection than any that had ever before been raised against the Government. John Randolph intimated that the President was again attempting to evade responsibility.
“It appears to my mind,” said he, “like an oblique attempt to cover a certain departure from an established law of the land, and a certain violation of the Constitution of the United States, which we are told have been committed in this country. Sir, recollect that Congress met on the first of December; that the President had information of the incipient stage of this conspiracy about the last of September; that the proclamation issued before Congress met; and yet that no suggestion, either from the Executive or from either branch of the Legislature, has transpired touching the propriety of suspending the writ of habeas corpus until this violation has taken place. I will never agree in this side way to cover up such a violation by a proceeding highly dangerous to the liberty of the country, or to agree that this invaluable privilege shall be suspended because it has been already violated,—and suspended, too, after the cause, if any there was for it, has ceased to exist.... With whatever epithets gentlemen may dignify this conspiracy, ... I think it nothing more nor less than an intrigue!”
The Bill was accordingly rejected by the great majority of one hundred and thirteen to nineteen. On the same day the attorney-general applied to Judge Cranch of the District Court for a warrant against Bollman and Swartwout on the charge of treason, filing Wilkinson’s affidavit and a statement given under oath by William Eaton in support of the charge. The warrant was issued; Bollman and Swartwout at once applied to the Supreme Court, then in session, for a writ of habeas corpus. February 13 Chief-Justice Marshall granted the writ; February 16 their counsel moved for their discharge; and February 21 the chief-justice decided that sufficient evidence of levying war against the United States had not been produced to justify the commitment of Swartwout, and still less that of Bollman, and therefore that they must be discharged. Adair and Ogden, who had been sent to Baltimore, were liberated by Judge Nicholson.
The friends of the Administration, exasperated at this failure of justice, again talked of impeaching the judges.[244] Giles threatened to move an amendment of the Constitution taking all criminal jurisdiction from the Supreme Court. Meanwhile Randolph and the Federalists assailed Wilkinson, and by implication the President. They brought forward a Resolution declaring the expediency of making further provision by law for securing the privilege of habeas corpus; and in the warm debate raised by this manœuvre John Randolph made himself conspicuous by slurs upon Wilkinson, whom he did not scruple to charge with double treason,—to the Constitution and to Burr. By a close vote of sixty to fifty-eight this Resolution was indefinitely postponed; but the debate showed the settled drift of Randolph’s tactics. He meant to attack the President by attacking Wilkinson; and the President could no longer evade responsibility for Wilkinson’s acts. To be thwarted by Chief-Justice Marshall and baited by John Randolph; to be made at once the scapegoat of Burr’s crimes and of Wilkinson’s extravagances,—was a fate peculiarly hard to bear, but was one which Jefferson could not escape.
Thenceforward the situation changed. What seemed to be the indictment and trial of Burr became, in a political point of view, the trial of Wilkinson, with John Randolph acting as accuser and President Jefferson as counsel for the defence, while Chief-Justice Marshall presided in judgment. No more unpleasant attitude could be readily imagined for a man of Jefferson’s high position and pure character than to plead before his two most formidable and unforgiving enemies as the patron and protector of a client so far beneath respect. Driven by forces which allowed no choice of paths, he stood by the man who had saved him; but in order to understand precisely what he effected in sustaining Wilkinson, Americans must look in the archives of the King of Spain for knowledge of facts disbelieved by the President of the United States.
“According to appearances,” wrote Yrujo Jan. 28, 1807,[245] “Spain has saved the United States from the separation of the Union which menaced them. This would have taken place if Wilkinson had entered cordially into the views of Burr,—which was to be expected, because Wilkinson detests this government, and the separation of the Western States has been his favorite plan. The evil has come from the foolish and pertinacious perseverance with which Burr has persisted in carrying out a wild project against Mexico. Wilkinson is entirely devoted to us. He enjoys a considerable pension from the King. With his natural capacity and his local and military knowledge, he anticipated with moral certainty the failure of an expedition of this nature. Doubtless he foresaw from the first that the improbability of success in case of making the attempt would leave him like the dog in the fable with the piece of meat in his mouth; that is, that he would lose the honorable employment he holds and the generous pension he enjoys from the King. These considerations, secret in their nature, he could not explain to Burr; and when the latter persisted in an idea so fatal to Wilkinson’s interests, nothing remained but to take the course adopted. By this means he assures his pension; and will allege his conduct on this occasion as an extraordinary service, either for getting it increased, or for some generous compensation. On the other hand this proceeding secures his distinguished rank in the military service of the United States, and covers him with a popularity which may perhaps result in pecuniary advantages, and in any case will flatter his vanity. In such an alternative he has acted as was to be expected; that is, he has sacrificed Burr in order to obtain, on the ruins of Burr’s reputation, the advantages I have pointed out.”
Whether Yrujo was right in his theory of Wilkinson’s motives might be doubted, but on one point he could not be mistaken. The general-in-chief of the United States Army was in the employment of Don Carlos IV.; he enjoyed a pension of two thousand dollars a year in consideration of secret services, and for twenty years the services had been rendered and the pension had been paid.[246]