During the noon hour on Monday, March 30, Marshall went to "a retired room" in the Eagle Tavern. In this hostelry Burr was confined. Curious citizens thronged the big public room of the inn and were "awfully silent and attentive" as the pale and worn conspirator was taken by Major Joseph Scott, the United States Marshal, and two deputies through the quiet but hostile assemblage to the apartment where the Chief Justice awaited him. To the disappointment of the crowd, the door was closed and Aaron Burr stood before John Marshall.[981]
George Hay, the United States District Attorney, had objected to holding even the beginning of the preliminary hearing at the hotel, because the great number of eager and antagonistic spectators could not be present. Upon the sentiment of these, as will be seen, Hay relied, even more than upon the law and the evidence, to secure the conviction of the accused man. He yielded, however, on condition that, if any discussion arose among counsel, the proceedings should be adjourned to the Capitol.[982]
It would be difficult to imagine two men more unlike in appearance, manner, attire, and characteristics, than the prisoner and the judge who now confronted each other; yet, in many respects, they were similar. Marshall, towering, ramshackle, bony, loose-jointed, negligently dressed, simple and unconventional of manner; Burr, undersized and erect, his apparel scrupulously neat,[983] his deportment that of the most punctilious society. Outwardly, the two men resembled each other in only a single particular: their eyes were as much alike as their persons were in contrast.[984] Burr was fifty years of age, and Marshall was less than six months older.
Both were calm, admirably poised and self-possessed; and from the personality of each radiated a strange power of which no one who came near either of them could fail to be conscious. Intellectually, also, there were points of remarkable similarity. Clear, cold logic was the outstanding element of their minds.
The two men had the gift of lucid statement, although Marshall indulged in tiresome repetition while Burr never restated a point or an argument. Neither ever employed imagery or used any kind of rhetorical display. Notwithstanding the rigidity of their logic, both were subtle and astute; it was all but impossible to catch either off his guard. But Marshall gave the impression of great frankness; while about every act and word of Burr there was the air of mystery. The feeling which Burr's actions inspired, that he was obreptitious, was overcome by the fascination of the man when one was under his personal influence; yet the impression of indirectness and duplicity which he caused generally, together with his indifference to slander and calumny,[985] made it possible for his enemies, before his Western venture, to build up about his name a structure of public suspicion, and even hatred, wholly unjustified by the facts.
The United States District Attorney laid before Marshall the record in the case of Bollmann and Swartwout in the Supreme Court, and Perkins proudly described how he had captured Burr and brought him to Richmond. Hay promptly moved to commit the accused man to jail on the charges of treason and misdemeanor. The attorneys on both sides agreed that on this motion there must be argument. Marshall admitted Burr to bail in the sum of five thousand dollars for his appearance the next day at the court-room in the Capitol.
When Marshall opened court the following morning, the room was crowded with spectators, while hundreds could not find admittance. Hay asked that the court adjourn to the House of Delegates, in order that as many as possible of the throng might hear the proceedings. Marshall complied, and the eager multitude hurried pell-mell to the big ugly hall, where thenceforth court was held throughout the tedious, exasperating months of this historic legal conflict.
Hay began the argument. Burr's cipher letter to Wilkinson proved that he was on his way to attack Mexico at the time his villainy was thwarted by the patriotic measures of the true-hearted commander of the American Army. Hay insisted that Burr had intended to take New Orleans and "make it the capital of his empire." The zealous young District Attorney "went minutely into ... the evidence." The prisoner's stealthy "flight from justice" showed that he was guilty.
John Wickham, one of Burr's counsel, answered Hay. There was no testimony to show an overt act of treason. The alleged Mexican project was not only "innocent, but meritorious"; for everybody knew that we were "in an intermediate state between war and peace" with Spain. Let Marshall recall Jefferson's Message to Congress on that point. If war did not break out, Burr's expedition was perfectly suitable to another and a wholly peaceful enterprise, and one which the President himself had "recommended"—namely, "strong settlements beyond the Mississippi."[986]
Burr himself addressed the court, not, he said, "to remedy any omission of his counsel, who had done great justice to the subject," but "to repel some observations of a personal nature." Treason meant deeds, yet he was being persecuted on "mere conjecture." The whole country had been unjustly aroused against him. Wilkinson had frightened the President, and Jefferson, in turn, had alarmed the people.