The credibility of Dunbaugh was destroyed. Wilkinson was exposed in a despicable light,[1304] and Eaton appeared more fantastic than ever; but both these heroes put on looks of lofty defiance. The warrior-diplomat of Algerian fame had now fallen so low in the public esteem that one disgusted Virginian had threatened to kick him out of a room.[1305]
On September 15, 1807, the District Attorney, by attempting to enter a nolle prosequi on the indictment of Burr for misdemeanor, tried to prevent the jury from rendering a verdict.[1306] One member of the jury wanted that body to return a special finding; but his associates would have none of it, and in half an hour they reported a straight verdict of "Not Guilty."[1307]
Hay dismissed further proceedings against Smith and Blennerhassett on the indictments for misdemeanor, and then moved to commit Burr and his associates upon the charge of treason by "levying war" within the jurisdiction of the United States Court for the District of Ohio.[1308] On this motion, Marshall, as an examining magistrate, gave the Government wide scope in the introduction of testimony, to the immense disgust of the triply accused men. Blennerhassett thought that Marshall was conciliating "public prejudice."[1309] Burr told his counsel that the Chief Justice "did not for two days together understand either the questions or himself ... and should in future be put right by strong language." So angered was he with Marshall's "wavering," that at times "Burr ... would not trust himself to rise up to sum up and condense the forces displayed by his counsel, into compact columns, after the engagement, toward the close of the day, as is generally his practice."[1310]
Just at this time appeared a pamphlet[1311] by Marshall's brother-in-law, Joseph Hamilton Daveiss. Jefferson had removed him from the office of United States Attorney for the District of Kentucky because of Daveiss's failure in his attacks on Burr, and the revengeful Federalist lawyer and politician retaliated by abusing the President, Wilkinson, and Burr equally. Between Daveiss's pamphlet and Marshall's sudden admission of evidence, some saw a direct connection; the previous knowledge Marshall must have had of his brother-in-law's intended assault, inferred because of "the well-known spirit of clanship and co-operation with which the Marshalls and all their connections are so uniformly animated," showed, it was alleged, that the Chief Justice was working with his kinsman to bring down in indiscriminate ruin, Jefferson, Burr, and Wilkinson together.
The last volume of Marshall's "Life of Washington," that "five volumed libel," as Jefferson branded the biography, had recently appeared. Blennerhassett, who, in expressing his own opinions, usually reflected those of his associates, had "no doubt" that the President's perusal of Marshall's last volume and Daveiss's pamphlet "inspired Jefferson with a more deadly hatred of the Marshall faction than he has ever conceived of all the Burrites he ever heard of."[1313]
The President's partisans in Virginia were prompt to stoke the furnace of his wrath. William Thompson of Petersburgh[1314] wrote a brief "view" of the Burr trial and sent "the first 72. pages" to Jefferson, who read them "with great satisfaction" and clamored for more.[1315] Marshall's conduct should indeed fill everybody "with alarm," wrote Jefferson in reply. "We had supposed we possessed fixed laws to guard us equally against treason & oppression. But it now appears we have no law but the will of the judge. Never will chicanery have a more difficult task than has been now accomplished to warp the text of the law to the will of him who is to construe it. Our case too is the more desperate as to attempt to make the law plainer by amendment is only throwing out new materials for sophistry."[1316]
The Federalists in Washington, fast dwindling in power and number, experienced as much relief as their chronic melancholia permitted them to enjoy. "Had the late vice president and two senators been convicted and executed for treason, it would in the opinion of Europe, have reflected disgrace upon our country," notes Senator Plumer in his diary.[1317]
Hay, on the other hand, thought that "a correct and perspicuous legal history of this trial would be a valuable document in the hands of intelligent legislators," but that "among others it might perhaps do mischief. It might produce a sentiment toward all judicial system and law itself, the operation of which might perhaps be fatal to the tranquillity and good order of Society."[1318]
On October 20, Marshall delivered his last opinion in the Burr trials. It was upon the Government's motion to commit Burr and his associates for treason and misdemeanor committed on the dismal island at the mouth of the Cumberland, where Burr had first greeted his little band of settlers and potential adventurers. He must grant the motion, Marshall said, "unless it was perfectly clear that the act was innocent." If there was any doubt, the accused must be held. The Chief Justice then carefully analyzed all the evidence.[1319] He concluded that Burr's purposes were to settle the Washita lands and to invade Mexico if opportunity offered, perhaps, however, only in the event of war with Spain. But whether this was so ought to be left to the jury; Marshall would "make no comment upon it which might, the one way or the other, influence their judgment."[1320] He therefore would commit Burr and Blennerhassett "for preparing and providing the means for a military expedition" against Spain.
"After all, this is a sort of drawn battle," Burr informed Theodosia. "This opinion was a matter of regret and surprise to the friends of the chief justice and of ridicule to his enemies—all believing that it was a sacrifice of principle to conciliate Jack Cade. Mr. Hay immediately said that he should advise the government to desist from further prosecution."[1321]