If Marshall disappointed Burr, he infuriated Jefferson. In the closing words of his opinion the Chief Justice flung at the President this challenge: "If those whose province and duty it is to prosecute offenders against the laws of the United States shall be of the opinion that a crime of a deeper dye has been committed, it is at their choice to act in conformity with that opinion"—in short, let Jefferson now do his worst.
Marshall's final opinion and his commitment of Burr, under bail, to be tried in Ohio for possible misdemeanor at the mouth of the Cumberland should a grand jury indict him for that offense, disgusted Burr. Indeed he was so "exasperated" that "he was rude and insulting to the Judge."[1322] Nor did Marshall's friends in Richmond feel differently. They "are as much dissatisfied," records Blennerhassett, "with his opinion yesterday as Government has been with all his former decisions. He is a good man, and an able lawyer, but timid and yielding under the fear of the multitude, led ... by the vindictive spirit of the party in power."[1323]
Burr gave the bond of five thousand dollars required by Marshall, but in Ohio the Government declined to pursue the prosecution.[1324] Burr put the whole matter out of his mind as a closed incident, left Richmond, and started anew upon the execution of his one great plan as though the interruption of it had never happened.
Marshall hurried away to the Blue Ridge. "The day after the commitment of Colo. Burr for a misdemeanor I galloped to the mountains," he tells Judge Peters. During the trial Peters had sent Marshall a volume of his admiralty decisions; and when he returned from his belated vacation, the Chief Justice acknowledged the courtesy: "I have as yet been able only to peep into the book.... I received it while fatigued and occupied with the most unpleasant case which has ever been brought before a Judge in this or perhaps any other country, which affected to be governed by laws, since the decision of which I have been entirely from home.... I only returned in time to perform my North Carolina Circuit which terminates just soon enough to enable me to be here to open the Court for the antient dominion. Thus you perceive I have sufficient bodily employment to prevent my mind from perplexing itself about the attentions paid me in Baltimore and elsewhere.[1325]
"I wish I could have had as fair an opportunity to let the business go off as a jest here as you seem to have had in Pennsylvania: but it was most deplorably serious & I could not give the subject a different aspect by treating it in any manner which was in my power. I might perhaps have made it less serious to my self by obeying the public will instead of the public law & throwing a little more of the sombre upon others."[1326]
While Marshall was resting in the mountains, Jefferson was writing his reply to the last challenge of the Chief Justice.[1327] In his Message to Congress which he prepared immediately after the Burr trials, he urged the House to impeach Marshall. He felt it to be his duty, he said, to transmit a record of the Burr trial. "Truth & duty alone extort the observation that wherever the laws were appealed to in aid of the public safety, their operation was on behalf of those only against whom they were invoked." From the record "you will be enabled to judge whether the defect was in the testimony, or in the laws, or whether there is not a radical defect in the administration of the law? And wherever it shall be found the legislature alone can apply or originate the remedy.
"The framers of our constitution certainly supposed they had guarded, as well their government against destruction by treason, as their citizens against oppression under pretence of it: and if the pliability of the law as construed in the case of Fries,[1328] and it's wonderful refractoriness as construed in that of Burr, shew that neither end has been attained, and induce an awful doubt whether we all live under the same law. The right of the jury too to decide law as well as fact seems nugatory without the evidence pertinent to their sense of the law. If these ends are not attained it becomes worthy of enquiry by what means more effectual they may be secured?"[1329]
On the advice of his Cabinet,[1330] Jefferson struck out from the Message the sentences italicized above. But even with this strong language omitted, Congress was told to impeach Marshall in far more emphatic terms than those by which Jefferson had directed the impeachment of Pickering—in plainer words, indeed, than those privately written to Nicholson ordering the attack upon Chase. Jefferson's assault on Marshall was also inserted in a Message dealing with probable war against Great Britain and setting out the continuance of our unhappy relations with Spain, "to our former grounds of complaint" against which country had "been added a very serious one."[1331]
Had these grave conditions not engaged the instant attention of Congress, had public sentiment—even with part of its fury drawn from Burr to Great Britain—been heeded at the National Capital, there can be little doubt that John Marshall would have been impeached by the House that was now all but unanimously Republican, and would have been convicted by the overwhelmingly Jeffersonian Senate.
Well for Marshall's peace of mind that he had secluded himself in the solitudes of the Blue Ridge, for never was an American judge subjected to abuse so unsparing. The Jeffersonian press, particularly the Aurora and the Enquirer, the two leading Republican papers, went to the limits of invective. "Let the judge be impeached," said the Enquirer; the Wickham dinner was recalled—why had Marshall attended it? His speech on the Jonathan Robins case[1332]—"the price of his seat on the bench"—was "a lasting monument of his capacity to defend error."