“As a jockey might restore his fame in the course after he had injured it on the tight-rope, so, perhaps, the little ‘Emperor’ at Cole’s Creek may be forgotten in the attorney at Richmond.”[336]
For a few days the trial went on undisturbed, while the government put Eaton, Truxton, Peter Taylor, the Morgans, and a number of other witnesses on the stand to prove an overt act of treason at Blennerhassett’s island; but nothing short of Blennerhassett’s own confession could place the matter in a clear light, and Burr’s chief fear was evidently that Blennerhassett should turn State’s evidence. To prevent this, Allston was persuaded to pay the more pressing demands against Blennerhassett, and Burr exerted himself to conciliate him. On the other hand, Jefferson seemed to hope that he could be won over.[337] Duane, of the “Aurora,” visited him in prison August 23, and offered to serve as an intermediary with the government.[338] Had matters gone as the President hoped, something might have come of this manœuvre; but before further pressure could be employed, the chief-justice struck the prosecution dead.
August 19 Burr’s counsel suddenly moved to arrest the evidence. The government, they said, had gone through all its testimony relating to the overt act charged in the indictment; it admitted that Burr was hundreds of miles distant from the scene; and as the district-attorney was about to introduce collateral testimony of acts done beyond the jurisdiction of the court, it became the duty of the defence to object.
For ten days this vital point was argued. All the counsel on either side exerted themselves to the utmost. Wickham’s opening speech on the nature of treason was declared by as good a judge as Littleton Tazewell to be “the greatest forensic effort of the American bar.”[339] Luther Martin spoke fourteen hours, beginning with an almost passionate allusion to his idol Theodosia. William Wirt exhausted his powers of argument and oratory, and in the course of his address made the rhetorical display which became familiar to every American, and which introduced a sort of appeal to Blennerhassett to turn against the more guilty crew who were trying to sacrifice him to save themselves:—
“Who is Blennerhassett? A native of Ireland, a man of letters, who fled from the storms of his own country to find quiet in ours.”
George Hay was neither so efficient nor so dexterous as Wirt, and either intentionally or by awkwardness succeeded in giving the impression of threatening the court:[340]—
“Mr. Bott says that we are now advocating opinions which on Fries’ trial we condemned.... I beg leave to assure the gentleman that the censure which the judge drew on himself was not on account of his opinions, however incorrect they might be, but for his arbitrary and irregular conduct at the trial, which was one of the principal causes for which he was afterward impeached. He attempted to wrest the decision from the jury, and prejudge the case before hearing all the evidence in it,—the identical thing which this court is now called on by these gentlemen to do.”
That Hay, knowing well Jefferson’s thoughts and the magic that hung about the word “impeachment,” should have used these words inadvertently seemed hardly credible. If he did so, his clumsiness was as offensive as the threat could have been, for the idea of impeachment was in the air of the court-house. Burr’s counsel at once retaliated.[341] “It was very kind of the gentleman to remind the court of the danger of a decision of the motion in favor of the prisoner.” Hay protested that he had spoken innocently, and the chief-justice said that the allusion had not been taken as personal; but the unpleasant impression remained. “The gentleman plainly insinuated the possibility of danger to the court,” persisted the defence; and Luther Martin added,[342]—
“I do not know whether it were intended by this observation that your honors should be apprehensive of an impeachment in case you should decide against the wishes of the government. I will not presume that it was used with that view, but it is susceptible of being so misunderstood, however innocently or inadvertently it may have been made.”
August 31 the chief-justice read his decision. Much the longest of Marshall’s judicial opinions; elaborately argued, with many citations, and with less simple adherence to one leading thought than was usual in his logic,—this paper seemed, in the imagination of Marshall’s enemies, to betray a painful effort to reconcile his dictum in Bollman’s case with the exclusion of further evidence in the case of Burr. To laymen, who knew only the uncertainties of law; who thought that the assemblage on Blennerhassett’s island was such an overt act as might, without violent impropriety, be held by a jury to be an act of levying war; and who conceived that Burr, although absent from the spot, was as principal present in a legal sense such as would excuse a jury in finding him guilty,—an uneasy doubt could not fail to suggest itself that the chief-justice, with an equal effort of ingenuity, might have produced equal conviction in a directly opposite result. On the other hand, the intent of the Constitution was clear. The men who framed that instrument remembered the crimes that had been perpetrated under the pretence of justice; for the most part they had been traitors themselves, and having risked their necks under the law they feared despotism and arbitrary power more than they feared treason. No one could doubt that their sympathies, at least in 1788, when the Constitution was framed, would have been on the side of Marshall’s decision. If Jefferson, since 1788, had changed his point of view, the chief-justice was not under obligations to imitate him.