Giles was characteristically alert to the danger. Soon after Marshall had declined to commit Burr for treason and had released him under bail to appear on the charge of misdemeanor only, the Republican leader of the Senate, then in Virginia, wrote Jefferson of the situation.
The preliminary hearing of Burr had, Giles stated, greatly excited the people of Virginia and probably would "have the same effect in all parts of the United States." He urged the President to take "all measures necessary for effecting ... a full and fair judicial investigation." The enemies of the Administration had gone so far as to "suggest doubts" as to the "measures heretofore pursued in relation to Burr," and had dared to "intimate that the executive are not possessed of evidence to justify those measures"—or, if there was such evidence, that the prosecution had been "extremely delinquent in not producing it at the examination." Nay, more! "It is even said that General Wilkinson will not be ordered to attend the trial." That would never do; the absence of that militant patriot "would implicate the character of the administration, more than they can be apprised of."[994]
But Jefferson was sufficiently alarmed without any sounding of the tocsin by his Senatorial agent. "He had so frightened the country ... that to escape being overwhelmed by ridicule, he must get his prisoner convicted of the fell designs which he had publically attributed to him."[995] It is true that Jefferson did not believe Burr had committed treason;[996] but he had formally declared to Congress and the country that Burr's "guilt is placed beyond question," and, at any cost, he must now make good that charge.[997]
From the moment that he received the news of Marshall's decision to hold Burr for misdemeanor and to accept bail upon that charge, the prosecution of his former associate became Jefferson's ruling thought and purpose. It occupied his mind even more than the Nation's foreign affairs, which were then in the most dangerous state.[998] Champion though he was of equal rights for all men, yet any opposition to his personal or political desires or interests appeared to madden him.[999] A personal antagonism, once formed, became with Thomas Jefferson a public policy.
He could see neither merit nor honesty in any act or word that appeared to him to favor Burr. Anybody who intimated doubt of his guilt did so, in Jefferson's opinion, for partisan or equally unworthy reasons. "The fact is that the Federalists make Burr's cause their own, and exert their whole influence to shield him," he asserted two days after Marshall had admitted Burr to bail.[1000] His hatred of the National Judiciary was rekindled if, indeed, its fires ever had died down. "It is unfortunate that federalism is still predominant in our judiciary department, which is consequently in opposition to the legislative & Executive branches & is able to baffle their measures often," he averred at the same time, and with reference to Marshall's rulings thus far in the Burr case.
He pours out his feelings with true Jeffersonian bitterness and passion in his answer to Giles's letter. No wonder, he writes, that "anxiety and doubt" had arisen "in the public mind in the present defective state of the proof." This tendency had "been sedulously encouraged by the tricks of the judges to force trials before it is possible to collect the evidence dispersed through a line of two thousand miles from Maine to Orleans."
The Federalists too were helping Burr! These miscreants were "mortified only that he did not separate the Union and overturn the government." The truth was, declares Jefferson, that the Federalists would have joined Burr in order to establish "their favorite monarchy" and rid themselves of "this hated republic," if only the traitor had had "a little dawn of success." Consider the inconsistent attitude of these Federalists. Their first "complaint was the supine inattention of the administration to a treason stalking through the land in the open light of day; the present one, that they [the Administration] have crushed it before it was ripe for execution, so that no overt acts can be proved."
Jefferson confides to Giles that the Government may not be able to establish the commission of overt acts; in fact, he says, "we do not know of a certainty yet what will be proved." But the Administration is already doing its very best: "We have set on foot an inquiry through the whole of the country which has been the scene of these transactions to be able to prove to the courts, if they will give time, or to the public by way of communication to Congress, what the real facts have been"—this three months after Jefferson had asserted, in his Special Message on the conspiracy, that Burr's "guilt is placed beyond question."
In this universal quest for "the facts," the Government had no help from the National courts, complains the President: "Aided by no process or facilities from Federal Courts,[1001] but frowned on by their new-born zeal for the liberty of those whom we would not permit to overthrow the liberties of their country, we can expect no revealments from the accomplices of the chief offender." But witnesses would be produced who would "satisfy the world if not the judges" of Burr's treason. Jefferson enumerates the "overt acts" which the Administration expected to prove.[1002]
Marshall, of course, stood in the way, for it was plain that "the evidence cannot be collected under 4 months, probably 5." Jefferson had directed his Attorney-General, "unofficially," but "expressly," to "inform the Chief Justice of this." With what result? "Mr. Marshall says, 'more than 5 weeks have elapsed since the opinion of the Supreme Court has declared the necessity of proving the overt acts if they exist. Why are they not proved?' In what terms of decency," growls Jefferson, "can we speak of this? As if an express could go to Natchez or the mouth of the Cumberland and return in 5 weeks, to do which has never taken less than twelve."