Burr’s gaiety, which Blennerhassett noted, was not at all times apparent in the courtroom. As the Chief Justice began to show greater leniency toward accepting the prosecution’s testimony the Colonel became progressively more bitter. He made little effort to conceal his irritation at what he conceived to be weakness and vacillation on the part of Judge Marshall.
At last the prosecution came to the end of its list of witnesses and left to the Court a decision on Hay’s motion that the conspirators be held on charges of treason and misdemeanor outside the jurisdiction of the Virginia circuit. On October 20 the Chief Justice delivered his final opinion. Weighing the whole of the testimony, he said, it appeared to him to predominate in favor of the belief that the enterprise was really designed against Mexico. If there had been any plan for dismembering the Union it was known only to Burr and Blennerhassett. Even the witnesses offered by the prosecution had asserted that they had heard nothing and suspected nothing hostile to the United States. How then could the assemblage of men be said to have levied war against the United States? He therefore concluded that, in his judgment, it would be improper to commit the accused on the charge of treason.
As to the charge of misdemeanor, it appeared to the Chief Justice that Burr’s purposes were to settle the Washita lands and to invade Mexico if opportunity offered, perhaps only in the event of war with Spain. But this was a matter which should be left to the decision of the jury, and he would make no comment on it one way or the other to influence their judgment. He therefore would commit Burr and Blennerhassett for preparing and providing the means for a military expedition against Spain. In this instance the misdemeanor was alleged to have occurred in Ohio. Therefore Burr and Blennerhassett were released on bail for the action of the Circuit Court in that state at its next meeting on January 4, 1808.
Hay interpreted the decision as a defeat for the Government forces. He immediately said that he would advise the Government to desist from further prosecution. No man on either side had labored more indefatigably than he. But his patience was now at an end. And so in the last days of the trial he threw aside all restraint and confided in Jefferson his true sentiments with respect to Wilkinson. To the President he wrote: “The declaration which I made in court in his favor some time ago was precipitate; and though I have not retracted it, everybody sees that I have not attempted the task, which I in fact promised to perform. My confidence in him is shaken, if not destroyed. I am sorry for it, on his account, on the public account, and because you have expressed opinions in his favor; but you did not know then what you will soon know, and what I did not learn until after—long after—my declaration above mentioned.”
Whatever Mr. Jefferson’s innermost feelings may have been on receipt of this letter from the District Attorney surely he was then in no position to confess any misgivings about the man whom he had taken as his chief ally in the proceedings in Richmond.
Burr was no better pleased with the Chief Justice’s decision on the Hay motion than was its author. In his disappointment at not being granted complete exoneration he ignored the courageous behavior of Judge Marshall in his behalf at the critical moment when the mob was hot on Burr’s heels.
Three days after the rendering of the final decision he wrote in disgust to Theodosia: “After all, this is a sort of drawn battle. The Chief Justice gave his opinion on Tuesday. After declaring that there were no grounds of suspicion as to treason, he declared that Burr and Blennerhassett should give bail in $3,000 for further trial in Ohio.
“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.”
Gratitude was not one of Colonel Burr’s most conspicuous attributes.
