“That this Court dares not usurp power is most true.
“That this Court dares not shrink from its duty is not less true.
“No man is desirous of becoming the peculiar subject of calumny. No man, might he let the cup pass from him without self reproach, would drain it to the bottom.
“But he has no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits contempt as well as the indignation of his country, who can hesitate which to embrace.”
There spoke the soldier of the American Revolution. Not all the power that could be exerted by the presidential office, not all the threats of public violence nor the prospect of public scorn could frighten John Marshall from doing his duty as he saw it. If Aaron Burr was to be found guilty of treason it would be only after he had been granted all the protection that was due him under the Constitution and the laws of the land.
If that be an undue encroachment of the Judiciary on the powers of the Executive and the Legislature, let Mr. Jefferson make the most of it!
“The result of the whole,” concluded Judge Marshall, returning to his customary calm, judicial language, “is a conviction as complete as the mind of the Court is capable of receiving on a complex subject, that the motion must prevail.”
He observed that the jury had heard the opinion of the Court on the law of the case. They would now apply that law to the fact and would find a verdict of guilty or not guilty as their conscience might dictate.
Although the great probability of an opinion ruling out the rest of the evidence must have been foreseen by the prosecution, Mr. Hay was momentarily confused as to how next to proceed. So, as soon as the Chief Justice had concluded his remarks to the jury, the District Attorney requested that the Court grant him time to consider it. Judge Marshall readily agreed and an adjournment was taken until the morrow.
Whatever courses the counsel for the prosecution may have discussed among themselves during the evening they came upon no plan to counter the opinion of the Chief Justice. So, when the Court met next day, Mr. Hay announced that he had nothing to offer the jury either of evidence or argument and must, therefore, leave the case to it.