Burr himself closed this unexpected debate, so suddenly thrust upon his counsel and himself. His speech is a model of that simple, perspicuous, and condensed statement of which he was so perfectly the master. He presented the law, and then, turning to Hay, said that two months previous the District Attorney had declared that he had enough evidence to justify the commitment, and surely he must have it now. Nearly half a year had elapsed since Jefferson had "declared that there was a crime," and yet, even now, the Government was not ready. Nevertheless, the court was again asked to imprison him for an alleged offense for which the prosecution admitted it had not so much as the slight evidence required to secure his indictment by the grand jury.
Were the Government and he "on equal terms?" Far from it. "The United States [could] have compulsory process" to obtain affidavits against him but he had "no such advantage." So the prosecution demanded his imprisonment on ex parte evidence which would be contradicted by his own evidence if he could adduce it. Worse still! The Government affidavits against him "are put into the newspapers, and they fall into the hands of the grand jury." Meanwhile, he was helpless. And now the opinion of the court was also to be added to the forces working to undo him.
Wirt and Hay had charged his counsel "with declamation against the government." Certainly nobody could attribute "declamation" to him; but, said Burr, his restrained voice tense with suppressed emotion, "no government is so high as to be beyond the reach of criticism"—that was a fundamental principle of liberty. This was especially true when the Government prosecuted a citizen, because of "the vast disproportion of means which exists between it and the accused." And "if ever there was a case which justified this vigilance, it is certainly the present one"; let Marshall consider the "uncommon activity" of the Administration.
Burr would, he said, "merely state a few" of the instances of "harrassing, ... contrary to law" to which he had been subjected. His "friends had been every where seized by the military authority," dragged before "particular tribunals," and forced to give testimony; his papers taken; orders to kill him issued; post-offices broken open and robbed—"nothing seemed too extravagant to be forgiven by the amiable morality of this government." Yet it was for milder conduct that Americans rightly condemned "European despotisms."
The President was a great lawyer; surely "he ought to know what constitutes war. Six months ago he proclaimed that there was a civil war. And yet, for six months they have been hunting for it and cannot find one spot where it existed. There was, to be sure, a most terrible war in the newspapers; but no where else." He had been haled before the court in Kentucky—and no proof; in Mississippi—and no proof. The Spaniards actually invaded American territory—even then there was no war.
Thus early the record itself discloses the dramatic, and, for Marshall, perilous, conditions under which this peculiar trial was to be conducted. The record makes clear, also, the plan of defense which Burr and his counsel were forced to adopt. They must dull the edge of public opinion sharpened to a biting keenness by Jefferson. They must appeal to the people's hatred of oppression, fear of military rule, love of justice. To do this they must attack, attack, always attack.
They must also utilize every technical weapon of the law. At another time and place they could have waived, to Burr's advantage, all legal rights, insisted upon his indictment, and gone to trial, relying only upon the evidence. But not in the Virginia of 1807, with the mob spirit striving to overawe jury and court, and ready to break out in violent action—not at the moment when the reign of Thomas Jefferson had reached the highest degree of popular idolatry.
Just as Hay, Wirt, and MacRae generally spoke to the spectators far more than to the Bench, so did Wickham, Randolph, Botts, and Martin.[1063] Both sides so addressed the audience that their hearers were able to repeat to the thousands who could not get into the hall what had been said by the advocates. From the very first the celebrated trial of Aaron Burr was a contest for the momentary favor of public opinion; and, in addition, on the part of Burr, an invoking of the law to shield him from that popular wrath which the best efforts of his defenders could not wholly appease.
Marshall faced a problem of uncommon difficulty. It was no small matter to come between the populace and its prey—no light adventure to brave the vengeance of Thomas Jefferson. Not only his public repute[1064]—perhaps even his personal safety[1065] and his official life[1066]—but also the now increasing influence and prestige of the National Judiciary were in peril. However, he must do justice no matter what befell—he must, at all hazards, pronounce the law truly and enforce it bravely, but with elastic method. He must be not only a just, but also an understanding, judge.
When court opened next morning, Marshall was ready with a written opinion. Concisely he stated the questions to be decided: Had the court the power to commit Burr, and, if so, ought the circumstances to restrain the exercise of it? Neither side had made the first point, and Marshall mentioned it only "to show that it [had] been considered." Briefly he demonstrated that the court was clothed with authority to grant Hay's motion. Should that power, then, be exerted? Marshall thought that it should. The Government had the right to ask Burr's incarceration at any time, and it was the duty of the court to hear such a motion.