Had he acted like a guilty man, he asked? Briefly and modestly he told of his conduct before the courts and grand juries in Kentucky and Mississippi, and the result of those investigations. The people among whom he journeyed saw nothing hostile or treasonable in his expedition.
His "flight"? That had occurred only when he was denied the protection of the laws and when armed men, under illegal orders of an autocratic military authority, were seeking to seize him violently. Then, and only then, acting upon the advice of friends and upon his own judgment, had he "abandoned a country where the laws ceased to be the sovereign power." Why had the guards who brought him from Alabama to Richmond "avoided every magistrate on the way"? Why had he been refused the use of pen, ink, and paper—denied even the privilege of writing to his daughter? It was true that when, in South Carolina, the soldiers chanced upon three civilians, he did indeed "demand the interposition of the civil authority." Was that criminal? Was it not his right to seek to be delivered from "military despotism, from the tyranny of a military escort," and to be subjected only to "the operation of the laws of his country"?[987]
On Wednesday, April 1, Marshall delivered the second of that series of opinions which established the boundaries of the American law of treason and rendered the trial of Aaron Burr as notable for the number and the importance of decisions made from the bench during the progress of it, as it was famous among legal duels in the learning, power, and eloquence of counsel, in the influences brought to bear upon court and jury, and in the dramatic setting and the picturesque incidents of the proceedings.
Marshall had carefully written his opinion. At the close of court on the preceding day, he had announced that he would do this in order "to prevent any misrepresentations of expressions that might fall on him." He had also assured Hay that, in case he decided to commit Burr, the District Attorney should be heard at any length he desired on the question of bail.
Thus, at the very beginning, Marshall showed that patience, consideration, and prudence so characteristic of him, and so indispensable to the conduct of this trial, if dangerous collisions with the prevailing mob spirit were to be avoided. He had in mind, too, the haughty and peremptory conduct of Chase, Addison, and other judges which had given Jefferson his excuse for attacking the Judiciary, and which had all but placed that branch of the Government in the absolute control of that great practical genius of political manipulation. By the gentleness of his voice and manner, Marshall lessened the excuse which Jefferson was eagerly seeking in order again to inflame the passions of the people against the Judiciary.
Proof strong enough to convict "on a trial in chief," or even to convince the judge himself of Burr's guilt, was not, said Marshall, necessary to justify the court in holding him for the action of the grand jury; but there must be enough testimony "to furnish good reason to believe" that Burr had actually committed the crimes with which he stood charged.
Marshall quoted Blackstone to the effect that a prisoner could be discharged only when it appeared that the suspicion against him was "wholly groundless," but this did not mean that "the hand of malignity may grasp any individual against whom its hate may be directed or whom it may capriciously seize, charge him with some secret crime and put him on the proof of his innocence."
Precisely that "hand of malignity," however, Burr was feeling by orders of Jefferson. The partisans of the President instantly took alarm at this passage of Marshall's opinion. Here was this insolent Federalist Chief Justice, at the very outset of the investigation, presuming to reflect upon their idol. Such was the indignant comment that ran among the Republicans who packed the hall; and reflect upon the President, Marshall certainly did, and intended to do.
The softly spoken but biting words of the Chief Justice were unnecessary to the decision of the question before him; they accurately described the conduct of the Administration, and they could have been uttered only as a rebuke to Jefferson or as an attempt to cool the public rage that the President had aroused. Perhaps both motives inspired Marshall's pen when he wrote that statesmanlike sentence.[988]
On the whole, said Marshall, probable cause to suspect Burr guilty of an attempt to attack the Spanish possessions appeared from Wilkinson's affidavit; but the charge of treason was quite another matter. "As this is the most atrocious offence which can be committed against the political body, so it is the charge which is most capable of being employed as the instrument of those malignant and vindictive passions which may rage in the bosoms of contending parties struggling for power." Treason is the only crime specifically mentioned in the Constitution—the definition of all others is left to Congress. But the Constitution itself carefully and plainly describes treason and prescribes just how it must be proved.