Marshall answered that he did not intend to charge the Administration or its attorneys with a desire to convict Burr "whether he was guilty or innocent"; but, he added dryly, "gentlemen had so often, and so uniformly asserted, that colonel Burr was guilty, and they had so often repeated it before the testimony was perceived, on which that guilt could alone be substantiated, that it appeared to him probable, that they were not indifferent on the subject."[1118]
Hay, in his report to Jefferson, gave more space to this incident than he did to all other features of the case. He told the President that Marshall had issued the dreaded process and then quoted the offensive sentence. "This expression," he relates, "produced a very strong & very general sensation. The friends of the Judge, both personal & political, Condemned it. Alexṛ McRae rose as soon as he had finished, and in terms mild yet determined, demanded an explanation of it. The Judge actually blushed." And, triumphantly continues the District Attorney, "he did attempt an explanation.... I observed, with an indifference which was not assumed, that I had endeavored to do my duty, according to my own judgment and feelings, that I regretted nothing that I had said or done, that I should pursue the same Course throughout, and that it was a truth, that I cared not what any man said or thought about it."
Marshall himself was perturbed. "About three hours afterwards," Hay tells Jefferson, "when the Crowd was thinned, the Judge acknowledged the impropriety of the expression objected to, & informed us from the Bench that he had erased it." The Chief Justice even apologized to the wrathful Hay: "After he had adjourned the Court, he descended from the Bench, and told me that he regretted the remark, and then by way of apology said, that he had been so pressed for time, that he had never read the opinion, after he had written it." Hay loftily adds: "An observation from me that I did not perceive any connection between my declarations & his remark, or how the former could regularly be the Cause of the latter, closed the Conversation."[1119]
Hay despondently goes on to say that "there never was such a trial from the beginning of the world to this day." And what should he do about Bollmann? That wretch "resolutely refuses his pardon & is determined not to utter a word, if he can avoid it. The pardon lies on the clerks table. The Court are to decide whether he is really pardoned or not. Martin says he is not pardoned. Such are the questions, with which we are worried. If the Judge says that he is not pardoned, I will take the pardon back. What shall I then do with him?"
The immediate effect of Marshall's ruling was the one Jefferson most dreaded. For the first time, most Republicans approved of the opinion of John Marshall. In the fanatical politics of the time there was enough of honest adherence to the American ideal, that all men are equal in the eyes of the law, to justify the calling of a President, even Thomas Jefferson, before a court of justice.
Such a militant Republican and devotee of Jefferson as Thomas Ritchie, editor of the Richmond Enquirer, the party organ in Virginia, did not criticize Marshall, nor did a single adverse comment on Marshall appear in that paper during the remainder of the trial. Not till the final verdict was rendered did Ritchie condemn him.[1120]
Before he learned of Marshall's ruling, Jefferson had once more written the District Attorney giving him well-stated arguments against the issuance of the dreaded subpœna.[1121] When he did receive the doleful tidings, Jefferson's anger blazed—but this time chiefly at Luther Martin, who was, he wrote, an "unprincipled & impudent federal bull-dog." But there was a way open to dispose of him: Martin had known all about Burr's criminal enterprise. Jefferson had received a letter from Baltimore stating that this had been believed generally in that city "for more than a twelve-month." Let Hay subpœna as a witness the writer of this letter—one Greybell.
Something must be done to "put down" the troublesome "bull-dog": "Shall L M be summoned as a witness against Burr?" Or "shall we move to commit L M as particeps criminis with Burr? Greybell will fix upon him misprision of treason at least ... and add another proof that the most clamorous defenders of Burr are all his accomplices."
As for Bollmann! "If [he] finally rejects his pardon, & the Judge decides it to have no effect ... move to commit him immediately for treason or misdemeanor."[1122] But Bollmann, in open court, had refused Jefferson's pardon six days before the President's vindictively emotional letter was written.
After Marshall delivered his opinion on the question of the subpœna to Jefferson, Burr insisted, in an argument as convincing as it was brief, that the Chief Justice should now deliver the supplementary charge to the grand jury as to what evidence it could legally consider. Marshall announced that he would do so on the following Monday.[1123]