But if Marshall was determined to attack Jefferson and "issue any process which [would] involve any act of force to be committed on the persons of the Exve or heads of departs," Hay was to give Jefferson "instant notice, and by express if you find that can be done quicker than by post; and ... moreover ... advise the marshal on his conduct as he will be critically placed between us."
The "safest way" for that officer to pursue "will be to take no part in the exercise of any act of force ordered in this case. The powers given the Exve by the constn are sufficient to protect the other branches from judiciary usurpation of pre-eminence, & every individual also from judiciary vengeance, and the marshal may be assured of it's effective exercise to cover him."
Such was Jefferson's threat to use force against the execution of the process of the National courts. But the President went on: "I hope however that the discretion of the C. J. will suffer this question to lie over for the present, and at the ensuing session of the legislature [Congress] he may have means provided for giving individuals the benefit of the testimony of the Exve functionaries in proper cases, without breaking up the government. Will not the associate judge [Cyrus Griffin] assume to divide his court and procure a truce at least in so critical a conjuncture?"[1292]
When Hay acknowledged that he had one of the letters from Wilkinson to Jefferson, a subpœna duces tecum was served on the District Attorney, notwithstanding his gallant declaration that he would not produce it even if he were sent to jail for not doing so. Hay then returned a copy of such parts of the letter as he thought "material for the purposes of justice," declining to give those passages which Jefferson deemed "confidential."[1293] Burr insisted on the production of the entire letter.
Botts moved that the trial be postponed "till the letter shall be produced." Another of that unending series of arguments followed,[1294] and still another of Marshall's cautious but convincing opinions came forth. Jefferson, he said, had not forbidden the production of the letter—the President, in response to the subpœna upon him, had sent the document to Hay, leaving to the discretion of the District Attorney the question as to what should be done with it. Of course if, for public reasons, Jefferson had declined to produce the letter, his "motives may [have been] such as to restrain the court" from compelling him to do so.[1295] At least Burr might see the letter now; consideration of the other features of the controversy would be deferred.[1296]
The distracted Hay, his sour temper made more acid by a "greatly aggravated influenza," wrote Jefferson of the Government's predicament; Marshall's remarks from the bench had not been explicit, he said, and "it is impossible to foresee what his opinion will be unless I could foresee what will be the state of his nerves. Wirt, who has hitherto advocated the integrity of the Chief Justice, now abandons him."
The District Attorney dolefully tells the President that he is "very decidedly of the opinion, that these prosecutions will terminate in nothing." He thinks the Government will be defeated on the trials for misdemeanor, and believes the indictments for that offense should be dismissed and motion made for the commitment of Burr, Blennerhassett, and Smith to be transferred to some spot where their crime might be proved. "Instruct me," he begs Jefferson, "specially on this point."[1297]
Jefferson, now on his vacation at Monticello, directed Hay to press at Richmond the trial of Burr for misdemeanor. "If defeated it will heap coals of fire on the head of the judge; if convicted, it will give them time to see whether a prosecution for treason can be instituted against him in any, and what court." A second subpœna duces tecum seems to have been issued against Jefferson,[1298] and he defiantly refused to "sanction a proceeding so preposterous," by "any notice" of it.[1299] And there this heated and dangerous controversy appears to have ended.[1300]
Finally, the hearing of evidence began on the indictment against Burr for misdemeanor—for having conducted an attack upon Mexico. For seven weeks the struggle went on. The Government's attorneys showed the effects of the long and losing fight. Many witnesses were sent home unexamined or merely leaving their affidavits. Hay acted like the sick man he really was. The dour MacRae appeared "utterly chop-fallen; an object of disgust to his friends, and pity to his enemies."[1301] Only Wirt, with his fine gallantry of spirit, bore himself manfully. Motions, arguments, opinions continued. One of Marshall's rulings on the admissibility of evidence moved Blennerhassett to ecstasies.[1302]
More than fifty witnesses were examined, the heavy preponderance of the evidence clearly showing that Burr's purpose and expectations had been to settle the Washita lands and, in case the United States went to war with Spain, and only in that event, to lead a force against the Spaniards. No testimony whatever was given tending to disclose any hostile plans against the United States, or even for an attack upon Mexico without war between America and Spain, except that of Wilkinson, Eaton, Taylor, Allbright, and the Morgans, as already set out. One witness also told of a wild and fanciful talk by the eccentric and imaginative Blennerhassett.[1303]