Jefferson cannot sufficiently criticize Marshall's opinion: "If, in Nov. or Dec. last, a body of troops had assembled on the Ohio, it is impossible to suppose the affidavits establishing the fact could not have been obtained by the last of March," he quotes from Marshall's ruling. "I ask the judge where they [the affidavits] should have been lodged? At Frankfort? at Cincinnati? at Nashville? St. Louis?... New Orleans?... Where? At Richmond he certainly meant, or meant only to throw dust in the eyes of his audience."[1003]
As his pen flew over the burning page, Jefferson's anger grew. Marshall's love of monarchy was at the bottom of his decision: "All the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overrun this odious Republic."
Marshall's refinements as to proof required to establish probable cause to believe Burr guilty, particularly irritated Jefferson. "As to the overt acts, were not the bundle of letters of information in Mr. Rodney's hands, the letters and facts published in the local newspapers, Burr's flight, & the universal belief or rumor of his guilt, probable ground for presuming the facts ... so as to put him on trial? Is there a candid man in the U S who does not believe some one, if not all, of these overt acts to have taken place?"
How dare Marshall require legal evidence when "letters, newspapers and rumors" condemned Burr! How dare he, as a judge, not heed "the universal belief," especially when that general public opinion had been crystallized by Jefferson himself!
That Marshall was influenced by politics and was of a kidney with the whole breed of National judges up to that time, Jefferson had not the slightest doubt. "If there ever had been an instance in this or the preceding administrations, of federal judges so applying principles of law as to condemn a federal or acquit a republican offender, I should have judged them in the present case with more charity."
But the conduct of the Chief Justice will be the final outrage which will compel a great reform. "The nation will judge both the offender & judges for themselves ... the people ... will see ... & amend the error in our Constitution, which makes any branch independent of the nation.... One of the great co-ordinate branches of the government, setting itself in opposition to the other two, and to the common sense of the nation, proclaims impunity to that class of offenders which endeavors to overturn the Constitution, and are themselves protected in it by the Constitution itself; for impeachment is a farce which will not be tried again."
Thus Jefferson extracts some comfort from Marshall's refusal to obey popular clamor and condemn on "rumor." If Marshall's "protection of Burr produces this amendment,[1004] it will do more good than his condemnation would have done. Against Burr, personally," audaciously adds Jefferson, "I never had one hostile sentiment."[1005]
Such was the state of the President's mind when he learned of Marshall's ruling on the Government's motion to commit Burr to jail upon the charges of treason and high misdemeanor. Jefferson felt that he himself was on trial; he knew that he must make good his charges or suffer a decline in the popularity which he prized above all else in life. He proposed that, at the very least, the public should be on his side, and he resolved to exert the utmost efforts of the National Government to bend Marshall to his will.
Thus the President of the United States became the leading counsel in the prosecution of Aaron Burr, as well as the director-general of a propaganda planned to confirm public opinion of Burr's treason, and to discredit Marshall should his decisions from the bench result in the prisoner's escape from the gallows.[1006] Jefferson ordered his Attorney-General, Cæsar A. Rodney, to direct justices of the peace throughout the country to examine everybody supposed to have any knowledge of Burr, his plans, movements, or conversations. Long lists of questions, designed to elicit replies that would convict Burr, were sent to these officials on printed forms. A vast drag-net was spread over almost the whole of the United States and drawn swiftly and remorselessly to Washington.
The programme for the prosecution became the subject of anxious Cabinet meetings, and the resources of every department of the Executive branch of the Government were employed to overwhelm the accused man. Jefferson directed Madison as Secretary of State "to take the necessary measures," including the advance of money for their expenses, to bring to Richmond witnesses "from great distances."