The government was represented by no one of equal force with these opponents. John Breckinridge, the Attorney-General of the United States, died in December, 1806. Jan. 20, 1807, President Jefferson appointed Cæsar A. Rodney to the post. Although Rodney’s abilities were respectable, he could hardly have wished to be confronted at once by the most important and difficult State prosecution ever tried under Executive authority. Rodney’s duties or his health prevented him from attendance. He barely appeared at Richmond in the preliminaries, and then left the case in the hands of the district-attorney, George Hay, who took his orders directly from Jefferson, with whom he was in active correspondence. To assist Hay the President engaged the services of William Wirt, then thirty-five years old, and promising to become an ornament to the bar; but in the profession of the law age gave weight, and Wirt, though popular, conscientious, admired, and brilliant in a florid style of oratory, suffered as a lawyer from his youth and his reputation as an orator. He was hardly more capable than Hay of conducting a case which drew upon every resource of personal authority. The third counsel, Alexander McRae, Lieutenant-Governor of Virginia, was inferior both in ability and in tact to either of his associates. His temper irritated Hay and offended the Court, while his arguments added little strength to the prosecution.
The first object of the government was to commit Burr for trial on the charge of treason as well as of misdemeanor; but Marshall promptly checked all hopes of obtaining aid from the court. April 1 the chief-justice delivered an opinion on the question of commitment, and took that opportunity to give the district-attorney a warning. Declining to commit Burr for treason without evidence stronger than the affidavits of Eaton and Wilkinson, Marshall blamed the Executive with asperity for neglect of duty in providing proof of treason:—
“Several months have elapsed since this fact did occur, if it ever occurred. More than five weeks have elapsed since the opinion of the Supreme Court has declared the necessity of proving the fact if it exists. Why is it not proved? To the Executive government is intrusted the important power of prosecuting those whose crimes may disturb the public repose or endanger its safety. It would be easy in much less time than has intervened since Colonel Burr has been alleged to have assembled his troops, to procure affidavits establishing the fact.”
Accordingly Burr was committed only for misdemeanor, and five securities immediately offered themselves on his behalf. At three o’clock on the afternoon of April 1 he was again at liberty, under bonds for ten thousand dollars to appear at the next circuit court, May 22, at Richmond.
Marshall’s reproof of Executive slowness was not altogether respectful to the co-ordinate branch of government. No doubt treasonable assemblages had taken place in December, and affidavits could have been brought from Marietta or Nashville within six or eight weeks had the government known precisely what would be needed, or where the evidence was to go; but no judge could reasonably require that the Executive should within five weeks obey a hint from the Supreme Court which implied a long correspondence and inquiry at spots so remote as Blennerhassett’s island, Lexington, Nashville, Fort Massac, and Chickasaw Bluffs. Jefferson was naturally indignant at being treated with so little courtesy. He wrote with extreme bitterness about Marshall’s “tricks to force trials before it is possible to collect the evidence.”[315] He returned threat for threat, with something in addition:—
“In what terms of decency can we speak of this? As if an express could go to Natchez or the mouth of the Cumberland and return in five weeks, to do which has never taken less than twelve!... But all the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overturn this odious republic!... All this, however, will work well. The nation will judge both the offender and judges for themselves. If a member of the Executive or Legislature does wrong, the day is never far distant when the people will remove him. They will see then and amend the error in our Constitution which makes any branch independent of the nation. They will see that one of the great co-ordinate branches of the government, setting itself in opposition to the other two and to the common-sense of the nation, proclaims impunity to that class of offenders which endeavors to overturn the Constitution, and are protected in it by the Constitution itself; for impeachment is a farce which will not be tried again. If their protection of Burr produces this amendment, it will do more good than his condemnation would have done; ... and if his punishment can be commuted now for a useful amendment of the Constitution, I shall rejoice in it.”
In substance Jefferson said that if Marshall should suffer Burr to escape, Marshall himself should be removed from office. No secret was made of this intention. The letter in which Jefferson announced the threat was written to the Virginia senator William B. Giles, who had been foremost in every attack upon the Judiciary, and would certainly lead the new one; but Giles was not the confidant of a secret,—the idea was common, as Marshall knew. The little society that swarmed in the court-room and in the streets of Richmond could see without an effort that the President courted a challenge from Marshall, and that the chief-justice on his side, for a second or third time, welcomed a trial of skill and address with the President. If Marshall was in truth the gloomy and malignant conspirator that Jefferson imagined him to be, he might easily excuse or justify the President’s intended course.
Punctually, May 22, the next act began. The question of commitment had been a matter of no great consequence; that of indictment was vital. Burr must be indicted, not merely for misdemeanor, but for treason; and to leave no doubt of success, the government summoned a cloud of witnesses to appear before the grand jury. The town swarmed with conspirators and government agents. The grand jury—containing some of the most respected citizens of Virginia—was sworn, and the court instructed the clerk to place John Randolph as foreman. A long delay ensued. General Wilkinson, the most important witness for government, was on his way from New Orleans; and while waiting his arrival from day to day, the grand jury took evidence and the court listened to the disputes of counsel. The district-attorney moved to commit Burr on the charge of treason, while Burr on his side moved for a subpœna duces tecum to be directed to the President, requiring him to produce certain papers in evidence. This motion was evidently part of a system adopted by the defence for annoying and throwing odium on the Executive,—a system which Burr’s counsel rather avowed than concealed, by declaiming against the despotism of government and the persecution of which Burr was a victim. Luther Martin, at the first moment of his appearance in court, launched into an invective against Jefferson:—
“The President has undertaken to prejudge my client by declaring that ‘of his guilt there can be no doubt.’ He has assumed the knowledge of the Supreme Being himself, and pretended to search the heart of my highly respected friend. He has proclaimed him a traitor in the face of that country which has rewarded him. He has let slip the dogs of war, the hell-hounds of persecution, to hunt down my friend. And would this President of the United States, who has raised all this absurd clamor, pretend to keep back the papers which are wanted for this trial, where life itself is at stake?”
A long argument followed. Hay, while admitting that the President might be generally subpœnaed as a witness, held that no need of a subpœna had been shown, and that in any case a subpœna duces tecum ought not to be issued. The chief-justice, after hearing counsel on both sides, read June 13 an elaborate decision, which settled the point in Burr’s favor.