at the head of the marine corps, he shall not dare to arrest them." For four days they talked, and at the end the motion was tabled by a vote of only sixty to fifty-eight.

Mr. Jefferson's great treason affair was not starting so well. .

3

But there was more trouble in store for him.

The prisoners, Swartwout and Bollmann, had arrived at Baltimore, and had been transferred to Washington on January 22. On January 26, the Attorney General applied for and obtained from Judge Cranch a warrant for their arrest on the charge of treason. The prisoners at once applied to the Supreme Court for a writ of habeas corpus, which was issued on February 13. On February 16, consequently, their attorneys moved for their discharge. In the meantime, Mr. Alexander had been landed at Baltimore, where, on February 6, he was discharged for lack of any evidence against him. On February 17, General Adair and Peter Ogden were landed at Baltimore, where, on February 18, they were discharged because "there was no proof of any nature whatsoever against them"-as a result of which General Adair sued General Wilkinson for damages, and finally recovered twenty-five hundred dollars which a benevolent Congress ultimately reimbursed. It was of the utmost importance to the administration, therefore, that a conviction be secured in the case of Swartwout and Bollmann.

They were charged specifically with "treason in levying war against the United States," evidence in

support of which was submitted in the form of General Wilkinson's documents, and an affidavit of General Eaton's, relating all his allegations of the previous year against Colonel Burr-the allegations which he had hitherto concealed from the President. Now there was something very curious about this affidavit. General Eaton, it will be remembered, had had certain long standing financial claims pending before Congress, which that body had shown no disposition to honor. Three days prior to the swearing out of the General's affidavit, however, his claims had been referred to a Committee of the House; one month later a bill authorizing their settlement was passed without debate "by surprise," as it seemed to John Randolph-and one week later General Eaton was paid ten thousand dollars. A profitable six weeks for General Eaton. And in Senator Plumer's opinion, General Eaton's mind was "so irregular, wild and confused . . . that I think every man who converses with him or in his hearing is in danger of being misrepresented by him. . . The more

distant the time, the more distant from Burr, and the louder public opinion is expressed agt. Burr-the fuller and stronger are the declarations of Eaton against the accused."

For three days arguments for and against the discharge of the prisoners were heard, and on February 21, Chief Justice Marshall delivered his opinion. To conspire to levy war, and actually to levy war were two distinct offences, he pointed out. "The first must be brought into operation by the assemblage of men for a purpose treasonable in itself," although they need not actually appear in arms

against the country. "If a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy are to be considered as traitors." An interpretation which was to cause the Chief Justice infinite embarrassment a few months later at Richmond. "But there must be an actual assembling of men for the treasonable purpose to constitute a levying of war."

The prisoners, charged with levying war, were therefore discharged. General Eaton's affidavit did not apply to them at all. In Colonel Burr's letter to General Wilkinson there was "no expression. which would justify a suspicion that any Territory of the United States was the object of the expedition;" there was not in the letter, "so far as that letter is laid before the Court, one syllable which has a necessary or a natural reference to an enterprise against any territory of the United States." As for what Mr. Swartwout was supposed to have told the General, the worst threatened at New Orleans was robbery. And if "those whose duty it is to protect the nation. . shall suppose those who have been charged with treason to be proper objects for punishment, they will, when possessed of less exceptionable testimony, and when able to say at what place the offence has been committed, institute fresh proceedings against them."

Senator Giles, for his part, was all for removing criminal cases from the jurisdiction of the Supreme Court! At all events, the administration's case

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