John Marshall
From the portrait by Robert Matthew Sully, in the Corcoran Gallery of Art, Washington, D.C.
Finally, he ordered that Burr "be acquitted and discharged" as to the indictment for treason, but to be held in five thousand dollars bail under the indictment for misdemeanor. Jonathan Dayton and William Langbourne offered themselves and were accepted as sureties; and on September 3, after nearly nine weeks of imprisonment, Burr walked out of court unhindered, no longer to be under lock and bar and armed guard.[1287]
Merry were the scenes in the houses of Richmond society that night; hilarious the rejoicing about the flowing board of Luther Martin; and, confused and afflicted with a blurred anger, the patriotic multitude talked resentfully of Marshall's decision. On one side it was said that justice had prevailed and persecution had been defeated; on the other, that justice had been mocked and treason protected. Hay, Wirt, and MacRae were bitter and despondent; Edmund Randolph, Botts, Martin, and Burr, jubilant and aggressive.
Many conflicting stories sprang up concerning Marshall—his majestic bearing on the bench, his servility, his courage, his timidity. One of these has survived: "Why did you not tell Judge Marshall that the people of America demanded a conviction?" a disgusted Republican asked of Wirt. "Tell him that!" exclaimed Wirt. "I would as soon have gone to Herschel, and told him that the people of America insisted that the moon had horns as a reason why he should draw her with them."[1288]
The captain of the "conspiracy" had never lost heart, and, save when angered by Marshall's seeming inconsistency and indecision, had continued to be cheery and buoyant. Steadily he had assured his friends that, when acquitted, he would again take up and put through his plans. This thought now dominated him. Blennerhassett, upon visiting his chief, found Burr "as gay as usual, and as busy in speculations on reorganizing his projects for action as if he had never suffered the least interruption," with better prospects for success than ever.[1289]
Quick to press his advantage, Burr the next morning demanded the production of the letters called for in the subpœna duces tecum to Jefferson. These had not been forthcoming, and Burr asserted the President to be in contempt of court and subject to punishment therefor.[1290] Once more altercation flared up in debate. Hay said he had one of the letters; that it had not "the most distant bearing on the subject," and that he might prefer "to be put in prison" rather than disclose its contents.[1291]
Jefferson had become very nervous about Marshall's order and plainly feared that the Chief Justice might attempt to enforce it. The thought frightened him; he had no stomach for a direct encounter. At last he wished to compose the differences between himself and the obstinate and fearless, if gentle-mannered, Marshall. So the President directed his district attorney to tell the United States Marshal to obey no order of the court and to intimate to the Chief Justice the wisdom of deferring the vexed question until the next session of Congress.
He wrote, said Jefferson, "in a spirit of conciliation and with the desire to avoid conflicts of authority between the high branches of the government which would discredit equally at home and abroad." Naturally Burr and his counsel would like "to convert this trial into a contest between the judiciary & Exve Authorities"; but he had not "expected ... that the Ch. Justice would lend himself to it." Surely Marshall's "prudence and good sense" would not "permit him to press it."