Day after day, court, grand jury, counsel, and spectators awaited the coming of Wilkinson. The Government refused to present any testimony to the grand jury until he arrived, although scores of witnesses were present. Andrew Jackson was very much in town, as we have seen. So was Commodore Truxtun. And "General" William Eaton was also on hand, spending his time, when court was not in session, in the bar-rooms of Richmond.
Wearing a "tremendous hat," clad in gay colored coat and trousers, with a flaming Turkish belt around his waist, Eaton was already beginning to weaken the local hatred of Burr by his loud blustering against the quiet, courteous, dignified prisoner.[1085] Also, at gambling-tables, and by bets that Burr would be convicted, the African hero was making free with the ten thousand dollars paid him by the Government soon after he made the bloodcurdling affidavit[1086] with which Jefferson had so startled Congress and the country.
While proceedings lagged, Marshall enjoyed the dinners and parties that, more than ever, were given by Richmond society. On one of these occasions that eminent and ardent Republican jurist, St. George Tucker, was present, and between him and Marshall an animated discussion grew out of the charge that Burr had plotted to cause the secession of the Western States; it was a forecast of the tremendous debate that was to end only at Appomattox. "Judge Tucker, though a violent Democrat," records Blennerhassett, "seriously contended ... with Judge Marshall ... that any State in the Union is at any time competent to recede from the same, though Marshall strongly opposed this doctrine."[1087]
Hay wrote Jefferson of the slow progress of the case, and the President "hastened" to instruct his district attorney: If the grand jury should refuse to indict Burr, Hay must not deliver the pardon to Bollmann; otherwise, "his evidence is deemed entirely essential, & ... his pardon is to be produced before he goes to the book." Jefferson had become more severe as he thought of Bollmann, and now actually directed Hay to show, in open court, to this new object of Presidential displeasure, the "sacredly confidential" statement given Jefferson under pledge of the latter's "word of honor" that it should never leave his hand. Hay was directed to ask Bollmann whether "it was not his handwriting."[1088]
With the same ink on his pen the President wrote his son-in-law that he had heard only of the first day of the trial, but was convinced that Marshall meant to do all he could for Burr. Marshall's partiality showed, insisted Jefferson, "the original error of establishing a judiciary independent of the nation, and which, from the citadel of the law can turn it's guns on those they were meant to defend, & controul & fashion their proceedings to it's own will."[1089]
Hay quickly answered Jefferson: The trial had "indeed commenced under inauspicious circumstances," and doubtless these would continue to be unfavorable. Nobody could predict the outcome. Hay was so exhausted and in such a state of mind that he could not describe "the very extraordinary occurrences in this very extraordinary examination." Burr's "partizans" were gloating over the failure of Wilkinson to arrive. Bollmann would neither accept nor reject the pardon; he was "as unprincipled as his leader." Marshall's refusal to admit Dunbaugh's affidavit was plainly illegal—"his eyes [were] almost closed" to justice.[1090]
Jefferson now showered Hay with orders. The reference in argument to Marshall's opinion in Marbury vs. Madison greatly angered him: "Stop ... citing that case as authority, and have it denied to be law," he directed Hay, and gave him the arguments to be used against it. An entire letter is devoted to this one subject: "I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, & denounced as not law; & I think the present a fortunate one, because it occupies such a place in the public attention."
Hay was openly to declare that the President rejected Marshall's opinion in that case as having been "given extra-judicially & against law," and that the reverse of it would be Jefferson's "rule of action." If necessary, Hay might state that the President himself had said this.[1091]
Back and forth went letters from Hay to Jefferson and from Jefferson to Hay,[1092] the one asking for instructions and the other eagerly supplying them. To others, however, the President explained that he could take no part in any judicial proceeding, since to do so would subject him to "just censure."[1093]
In spite of the abundance of Government witnesses available, the prosecution refused to go on until the redoubtable savior of his country had arrived from New Orleans. Twice the grand jury had to be dismissed for several days, in order, merrily wrote Washington Irving, "that they might go home, see their wives, get their clothes washed, and flog their negroes."[1094] A crowd of men ready to testify was held. The swarms of spectators waited with angry impatience. "If the great hero of the South does not arrive, it is a chance if we have any trial this term,"[1095] commented Irving.