Several witnesses for the Government were sworn, among them Commodore Thomas Truxtun, Commodore Stephen Decatur, and "General" William Eaton. When Dr. Erich Bollmann was called to the book, Hay stopped the administration of the oath. Bollmann had told the Government all about Burr's "plans, designs and views," said the District Attorney; "as these communications might criminate doctor Bollman before the grand jury, the president has communicated to me this pardon"—and Hay held out the shameful document. He had already offered it to Bollmann, he informed Marshall, but that incomprehensible person would neither accept nor reject it. His evidence was "extremely material"; the pardon would "completely exonerate him from all the penalties of the law." And so, exclaimed Hay, "in the presence of this court, I offer this pardon to him, and if he refuses, I shall deposit it with the clerk for his use." Then turning to Bollmann, Hay dramatically asked:
"Will you accept this pardon?"
"No, I will not, sir," firmly answered Bollmann.
Then, said Hay, the witness must be sent to the grand jury "with an intimation, that he has been pardoned."
"It has always been doctor Bollman's intention to refuse this pardon," broke in Luther Martin. He had not done so before only "because he wished to have this opportunity of publicly rejecting it."
Witness after witness was sworn and sent to the grand jury, Hay and Martin quarreling over the effect of Jefferson's pardon of Bollmann. Marshall said that it would be better "to settle ... the validity of the pardon before he was sent to the grand jury." Again Hay offered Bollmann the offensive guarantee of immunity; again it was refused; again Martin protested.
"Are you then willing to hear doctor Bollman indicted?" asked Hay, white with anger. "Take care," he theatrically cried to Martin, "in what an awful condition you are placing this gentleman."
Bollmann could not be frightened, retorted Martin: "He is a man of too much honour to trust his reputation to the course which you prescribe for him."
Marshall "would perceive," volunteered the nonplussed and exasperated Hay, "that doctor Bollman now possessed so much zeal, as even to encounter the risk of an indictment for treason."
The Chief Justice announced that he could not, "at present, declare, whether he be really pardoned or not." He must, he said, "take time to deliberate."