While the examination of jurors was in progress, one of the most brilliant debates of the entire trial sprang up, as to the nature and extent of opinions formed which would exclude a man from serving on a jury.[1193]
When Marshall was ready to deliver his opinion, he had heard all the reasoning that great lawyers could give on the subject, and had listened to acute analyses of all the authorities. His statement of the law was the ablest opinion he had yet delivered during the proceedings, and is an admirable example of his best logical method. It appears, however, to have been unnecessary, and was doubtless delivered as a part of Marshall's carefully considered plan to go to the extreme throughout the trial in the hearing and examination of every subject.[1194]
For nearly two weeks the efforts to select a jury continued. Not until August 15 were twelve men secured, and most of these avowed that they had formed opinions that Burr was a traitor. They were accepted only because impartial men could not be found.
When Marshall finished the reading of his opinion, Hay promptly advised Jefferson that "the [bi]as of Judge Marshall is as obvious, as if it was [stam]ped upon his forehead.... [He is] endeavoring to work himself up to a state of [f]eeling which will enable [him] to aid Burr throughout the trial, without appearing to be conscious of doing wrong. He [Marshall] seems to think that his reputation is irretrievably gone, and that he has now nothing to lose by doing as he pleases.—His concern for Burr is wonderful. He told me many years ago, when Burr was rising in the estimation of the republican party, that he was as profligate in principle, as he was desperate in fortune. I remember his words. They astonished me.
"Yet," complained Hay, "when the Gr: Jury brought in their bill the Chief Justice gazed at him, for a long time, without appearing conscious that he was doing so, with an expression of sympathy & sorrow as strong, as the human countenance can exhibit without palpable emotion. If Mr. Burr has any feeling left, yesterday must have been a day of agonizing humiliation," because the answers of the jurors had been uniformly against him; and Hay gleefully relates specimens of them.
"There is but one chance for the accused," he continued, "and that is a good one because it rests with the Chief Justice. It is already hinted, but not by himself [that] the decision of the Supreme Court will no[t be] deemed binding. If the assembly of men on [Blennerhassett's is]land, can be pronounced 'not an overt act' [it will] be so pronounced."[1195]
Hay's opening statement to the jury was his best performance of the entire proceedings. He described Burr's purpose in almost the very words of Jefferson's Special Message. The gathering on Blennerhassett's island was, he said, the overt act; Burr, it was true, was not there at the time, but his presence was not necessary. Had not Marshall, in the Bollmann and Swartwout case, said that "if war be actually levied, ... all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors"?[1196]
The examination of the Government's witnesses began. Eaton took the stand; but Burr insisted that the overt act must be proved before collateral testimony could be admitted. So came the first crossing of swords over the point that was to save the life of Aaron Burr. The arguments of counsel were brilliant; but neither side forgot the public. They must thrill the audience as well as convince the court. "There had been a great deal of war in the newspapers," said Wickham, but everybody knew "that there had been no war in fact." Wirt insisted on "unfolding events as they occurred"; that was "the lucid order of nature and reason." Martin pointed out that Eaton's testimony did not "relate to any acts committed any where, but to mere declarations out of the district."[1197] Let the evidence be pertinent. The indictment charged a specific act, and it must be proved as charged. No man could be expected suddenly to answer for every act of his life. If Burr had planned to free Mexico and had succeeded, "he would have merited the applause of the friends of liberty and of posterity; ... but his friends may now pray that he may not meet the fate that Washington himself would have met, if the revolution had not been established."
A mass of decisions, English as well as American, were cited by both Wirt and Martin;[1198] and when, that night, Marshall began to write his opinion on whether the overt act must be proved before other testimony could be received, all authorities had been reviewed, all arguments made.
Must the overt act be proved before hearing collateral testimony? The question, said Marshall, was precisely the same as that raised and decided on the motion to commit Burr. But it came up now under different circumstances—an indictment had been found "specifying a charge which is to be proved," and thus "an issue made up which presents a point to which all the testimony must apply." So Marshall could now "determine, with some accuracy, on the relevancy of the testimony."