For once Burr unleashed his deep but sternly repressed feeling: "Would to God," he cried, his voice vibrant with emotion, "that I did stand on the same ground with every other man. This is the first time [since the military seizure] that I have been permitted to enjoy the rights of a citizen. How have I been brought hither?" Marshall checked this passionate outburst: it was not proper, he admonished both Hay and Burr, to "go into these digressions."
His composure restored, Burr insisted that he should be accorded "the same privileges and rights which belonged to every other citizen." He would not now urge his objections to Marshall's opinion in the Bollmann-Swartwout case;[1055] but he pointed out "the best informed juryman might be ignorant of many points ... relating to testimony, ... for instance, as to the article of papers," and he wished Marshall to inform the jury on these matters of law.
A brief, sharp debate sprang up, during which Burr's counsel spoke of the "host of prejudices raised against [their] client," taunted Hay with his admission "that there was no man who had not formed an opinion," and denounced "the activity of the Government."[1056] Upon Hay's pledging himself that he would submit no testimony to the grand jury "without notice being first given to Colonel Burr and his counsel," Marshall adjourned the court that the attorneys might prepare for "further discussion." The Government was not ready to present any testimony on either the following day or on Monday because its principal witness, General Wilkinson, had not arrived.
Hay now sent Jefferson his first report of the progress of the case. Burr had steadily been making friends, and this irritated the District Attorney more than the legal difficulties before him. "I am surprised, and afflicted, when I see how much, and by how many, this man has been patronised and supported." Hay assured Jefferson, however, that he would "this day move to commit him for treason."[1057] Accordingly, he announced in the presence of the grand jury that he would again ask the court to imprison Burr on that accusation. In order, he said, that the impropriety of mentioning the subject in their presence might be made plain, Burr moved that the grand jury be withdrawn. Marshall sustained the motion; and after the grand jury had retired, Hay formally moved the court to order Burr's incarceration upon the charge of treason.[1058]
Burr's counsel, surprised and angered, loudly complained that no notice had been given them. With a great show of generosity, Hay offered to delay his motion until the next day. "Not a moment's postponement," shouted Botts, his fighting nature thoroughly aroused. Hay's "extraordinary application," he said, was to place upon the court the functions of the grand jury. Burr wanted no delay. His dearest wish was to "satisfy his country ... and even his prosecutors, that he is innocent." Was ever a man so pursued? He had been made the victim of unparalleled military despotism; his legal rights had been ignored; his person and papers unlawfully seized. The public had been excited to anger. Through newspaper threats and "popular clamor" attempts had been made to intimidate every officer of the court. Consider "the multitude around us"—they must not be further infected "with the poison already too plentifully infused."
Did Hay mean to "open the case more fully?" inquired Marshall. No, answered Hay; but Wilkinson's arrival in Virginia might be announced before he reached Richmond. Who could tell the effect on Burr of such dread tidings? The culprit might escape; he must be safely held.[1059] "The bets were against Burr that he would abscond, should W. come to Richmond."[1060]
If Wilkinson is so important a witness, "why is he not here?" demanded Wickham. Everybody knew that "a set of busy people ... are laboring to ruin" Burr. "The press, from one end of the continent to the other, has been enlisted ... to excite prejudices" against him. Let the case be decided upon "the evidence of sworn witnesses" instead of "the floating rumours of the day."
Did the Government's counsel wish that "the multitude around us should be prejudiced by garbled evidences?" Wickham avowed that he could not understand Hay's motives, but of this he was sure—that if, thereafter, the Government wished to oppress any citizen, drag him by military force over the country, prejudice the people against him, it would "pursue the very same course which has now been taken against colonel Burr." The prosecution admitted that it had not enough evidence to lay before the grand jury, yet they asked to parade what they had before the court. Why?—"to nourish and keep alive" the old prejudices now growing stale.[1061]
Wirt answered at great length. He understood Wickham's purpose, he said. It was to "divert the public attention from Aaron Burr," and "shift the popular displeasure ... to another quarter." Wickham's speech was not meant for the court, exclaimed Wirt, but for "the people who surround us," and so, of course, Marshall would not heed it. Burr's counsel "would convert this judicial inquiry into a political question ... between Thomas Jefferson and Aaron Burr."
Not to be outdone by his gifted associate, Hay poured forth a stream of words: "Why does he [Burr] turn from defending himself to attack the administration?" he asked. He did not answer his own question, but Edmund Randolph did: "An order has been given to treat colonel Burr as an outlaw, and to burn and destroy him and his property." Jefferson, when requested, had furnished the House information;—"would to God he had stopped here, as an executive officer ought to have done!" But instead he had also pronounced Burr guilty—an opinion calculated to affect courts, juries, the people. Wickham detailed the treatment of Burr, "the only man in the nation whose rights are not secure from violation."[1062]