A temporary embargo was laid that sailors might be had to put gun-boats and ketches in fighting trim. Many of the merchant vessels were armed and manned, and on Sunday, December fourteenth, arrests began. Bollmann was seized in New Orleans, Swartwout and Ogden at Fort Adams, and all three hurried on board the bomb-ketch Etna, then lying at anchor off the city. The arrest was wholly illegal; but the attempt now made to hold the prisoners was a flat defiance of their rights and of law. The Superior Court of Orleans issued writs of habeas corpus. But so completely was the city in the hands of Wilkinson that a day was wasted before the officer bearing the writs could find a boatman to row him out to the bomb-ketch. When he did reach the Etna, Ogden alone was there. Swartwout and Bollmann had been carried off to merchant-vessels and were at once sent north by sea. Ogden was given up, and a shameful contest for his possession began. The Court set him free. Wilkinson seized him a second time. The Court again issued a habeas corpus. Wilkinson defied it and held the prisoner. The Court attached Wilkinson for contempt. The General defied the attachment. The Judge called on the Governor for help; the Governor dared not give it, and the Judge, declaring that the judicial power had been laid low by the military power, resigned, and Wilkinson ruled Orleans.

To justify the arrest of Bollmann, Wilkinson charged him with treason, and swore to an affidavit, containing a copy of Burr's letter of July twenty-ninth. From the Court the letter went to the newspapers. By the newspapers it was spread all over the Territory, and in the columns of one of them was read with horror and dismay by Burr. Betrayed, disheartened, alarmed for his own safety and the safety of his men, he hastened back to the boats, drew them to the west bank of the river, where, out of the jurisdiction of Mississippi, he made a camp, posted sentinels, and drilled the men. While thus engaged, Cowles Mead, Secretary and Acting Governor of Mississippi, began to assemble the militia at Coles Creek, a few miles below Bayou Pierre, and sent several officers across the river to urge Burr to surrender. In this they succeeded, and on January seventeenth Burr met Mead and sur

1807.

ARREST OF BURR.

75

rendered. He was at once taken to Washington, the capital of the Territory, and brought before Judge Rodney. The Attorney-General, George Poindexter, gave it as his opinion that the prisoner could not be held. There was, in the first place, he said, no evidence that Burr had committed any offence within the boundaries of Mississippi. The Supreme Territorial Court, in the next place, before which Burr must be brought, was a court of appeals, and could not have original jurisdiction. He asked, therefore, that Burr be sent before the Supreme Court of the United States, that the place of trial might be determined. Rodney thought otherwise, and released Burr on bail, to appear from day to day till the adjourned meeting of the Supreme Court of the Territory. Again good fortune attended him. Poindexter made the old argument; but the judges were divided, the motion was lost, while the Grand Jury not only threw out the bill, but returned the arrest, the manner of the arrest, and the conduct of the Acting Governor, as grievances.

It was now Tuesday afternoon. On Wednesday evening, February fourth, the Grand Jury was discharged. Burr thereupon demanded a release from his recognizance.* This was refused, and, alarmed for his safety, he hastened to the house of one of his sureties, and from there fled to the woods. From his hiding-place he wrote to Robert Williams, Governor of the Territory. The vindictive temper and unprincipled conduct of Judge Rodney had forced him, he wrote, to withdraw from public view. He was still ready, as he had ever been, to submit to civil authority; but, before he again surrendered, he must know of what he stood charged, what security would be required, and must be assured that he would not be sent from the Territory.†

The note was long in reaching Mead, who in the mean. time put forth a proclamation offering two thousand dollars for the arrest of Burr. The moment he beheld this he once more wrote to the Governor, denied that he had fled his bail,

* Trial of Aaron Burr, Carpenter's edition of 1808, vol. iii, Appendix, p. 4. + Ibid., Appendix, p. 6.

February 6, 1807. Ibid., Appendix, p. 5.

and asserted that he was bound to appear if an indictment was found, and not otherwise.* The date of this letter is February twelfth; the answer of the Governor is dated February thirteenth. The hiding-place of Burr could not, therefore, have been far from the town of Washington. Wherever it was, he soon left it, and, disguised as a Mississippi boatman, fled across the Territory toward the Spanish frontier. Late in the night of February eighteenth he stopped at a log tavern in the town of Wakefield, Alabama, was recognized by the register of public lands, and the next morning was arrested by Lieutenant Gaines, from Fort Stoddert At the fort he was detained three weeks, and then sent on to Richmond, Virginia, where, on March thirtieth, in a room in the Eagle Tavern, he was brought before John Marshall for examination and commitment. That dread of being sent north, which so disturbed him in Mississippi, had now left him. His situation had changed greatly. In Mississippi he was the proscribed and hunted outlaw; at Richmond he was the hero of the hour. In the South his friends and fellow-conspirators had been seized, their legal rights set at nought, the courts defied, and the writ of habeas corpus violently suspended. In the North these friends had been set at liberty, their treatment denounced, and the request of the President that the acts of Wilkinson be made legal refused by the House of Representatives.

The proclamation had issued on the twenty-seventh of November; on December first the ninth Congress assembled, and on December second the annual message was read. In that message Jefferson affected to treat the conspiracy as most trivial. He had been informed, he said, that a great number of private persons were combining, arming, organizing for an expedition against the territories of Spain. This was illegal. He had therefore so proclaimed it, and had ordered the boats and arms to be seized and the men engaged arrested. So much was due to good faith and good order. Thus dismissed in a few words, Congress heard no more of the matter for six weeks. Then John Randolph, weary with waiting and goaded

* Trial of Aaron Burr, Carpenter's edition of 1808, vol. iii, Appendix, p. 6.

1807.

JEFFERSON'S MESSAGE.

77

on by the demands of the press for action, rose in his place and moved a call for information. The motion was carried, and six days later a long message came down to the House in reply. Ignoring the letters of Daveiss, in January and February, and the warning of Eaton, Jefferson led the House to believe that it was not till September that he heard of the actions of Burr; that it was not till October that the purpose of the conspirators was fully known, and that since October no pains had been spared to bring the rogues to justice. He told the House of the action of Daveiss, which he denounced. as "a premature attempt" to punish Burr more harmful than beneficial; of the orders to the Governors of Orleans and Mississippi; of the orders to Wilkinson; of the action of the Legislatures of Ohio and Kentucky; of the arrival of Wilkinson at New Orleans; and of the illegal arrests of Bollmann, Swartwout, and Ogden. He complained that one had been liberated by a writ of habeas corpus, and announced that the others, having been sent north by sea, might be expected to arrive any day.

A copy of the message was, of course, sent to the Senate, where in less than four-and-twenty hours a bill suspending the writ of habeas corpus in certain cases for three months was rushed through with the rules suspended.

It was on a Friday that the bill passed. The House did not

sit on

Saturday, and Monday came, therefore, before Samuel

Smith, a Senator from Maryland, entered the House, and, taking his stand before the Speaker's desk, said: "Mr. Speaker, I am directed by the Senate of the United States to deliver to this House a confidential message in writing." The floor and the gallery were instantly cleared, the door shut, and the bill and message delivered. This done, the Senator left, but he had not more than reached the Senate when the injunction of secrecy was taken off, the doors again thrown open, and a motion made that the bill be rejected. This motion was soon withdrawn to make way for another; and the debate then began.

The opponents of the bill, and they were six times as numerous as the supporters, declared it both dangerous and unconstitutional, and not fit to be considered. What, said

they, is a writ of habeas corpus? It is a writ issued by a judge directing a certain person in custody to be brought before a court that the legality of his confinement may be looked into. If, in the opinion of the judge, the legality is not established, the prisoner will be discharged; if, in the opinion of the judge, there is good reason to believe the prisoner guilty of the offence charged, he will, of course, be remanded. Is this a right to be suspended to gratify the mere apprehensions of gentlemen? Are we to accuse fellow-citizens of grave crimes, and then deprive them of the right to appear in court and prove their innocence? No. Very wisely, then, does the Constitution declare that "the privilege of the writ of habeas corpus shall not be suspended except when, in case of invasion or rebellion, the public safety shall require it." But the country is not invaded. There is no rebellion. How then can we constitutionally suspend the writ? Gentlemen say there is a rebellion. Be it so. May we suspend the writ in every case of rebellion? No, we may not; only, says the Constitution, only when, in case of rebellion, the public safety requires it. Does the public safety require it? The President says not. "The fugitives from the Ohio," he informs us, "and their associates from the Cumberland cannot threaten serious danger even to the city of New Orleans." How then can public safety require it? No one could tell; and, when the yea and nay vote was taken on the question, Shall this bill be rejected? one hundred and thirteen answered yea, and nineteen nay.*

Bollmann and Swartwout meantime had arrived, and the legal contest at New Orleans was re-enacted at Washington. The same day the House threw out the Suspension Bill, the Attorney-General appeared before Judge Cranch, of the District Court, produced an affidavit of Wilkinson, and a sworn statement of Eaton, charging Bollmann and Swartwout with treason, and asked for a warrant for their arrest. The warrant was issued. The men were arrested, and an application promptly made to the Supreme Court for a writ of habeas corpus. On the thirteenth of February the writ was granted,

* Annals of Congress, January 26, 1807.