“If it be said that the advising or procurement of treason is a secret transaction which can scarcely ever be proved in the manner required by this opinion, the answer which will readily suggest itself is that the difficulty of proving a fact will not justify conviction without proof.”
At the close of his decision the chief-justice, with simple dignity which still compels respectful admiration, took up the gauntlet which the district-attorney had flung at his feet. As though turning from the crowd in the court-room to look for a moment directly into the eyes of the President, the threatened chief-justice uttered a few words that were at once answer and defiance:—
“Much has been said in the course of the argument on points on which the Court feels no inclination to comment particularly, but which may perhaps not improperly receive some notice.
“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 placing himself in a disagreeable situation; no man is desirous of becoming the peculiar subject of calumny; no man, might he let the bitter cup pass from him without self-reproach, would drain it to the bottom; but if he has no choice in the case,—if there is no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world,—he merits the contempt as well as the indignation of his country who can hesitate which to embrace....
“No testimony relative to the conduct or declarations of the prisoner elsewhere and subsequent to the transactions on Blennerhassett’s island can be admitted; because such testimony, being in its nature merely corroborative, and incompetent to prove the overt act in itself, is irrelevant until there be proof of the overt act by two witnesses.”
On the following day, September 1, District-Attorney Hay abandoned the case, and the jury entered a verdict of “Not guilty.” Hay instantly reported to Monticello the result of his efforts, and added criticisms upon Marshall:[343]—
“Wirt, who has hitherto advocated the integrity of the chief-justice, now abandons him. This last opinion has opened his eyes, and he speaks in the strongest terms of reprobation.”
September 4 Jefferson replied in the tone which always accompanied his vexation:[344]—
“Yours of the 1st came to hand yesterday. The event has been what was evidently intended from the beginning of the trial; that is to say, not only to clear Burr, but to prevent the evidence from ever going before the world. But this latter case must not take place. It is now, therefore, more than ever indispensable that not a single witness be paid or permitted to depart until his testimony has been committed to writing.... These whole proceedings will be laid before Congress, that they may decide whether the defect has been in the evidence of guilt, or in the law, or in the application of the law, and that they may provide the proper remedy for the past and the future.”
Accordingly, although the trial for treason was at an end, the district-attorney pressed the indictment for misdemeanor; and until October 19 the chief-justice was occupied in hearing testimony intended for use not against Burr, but against himself. Then at last the conspirators were suffered to go their way, subject to legal proceedings in Ohio which the government had no idea of prosecuting; while the President, mortified and angry, prepared to pursue Marshall instead of Burr. The Federalists, who always overrated the strength of party passions, trembled again for the Judiciary; but in truth nothing was to be feared. The days of Jefferson’s power and glory had passed forever, while those of Marshall had barely begun. Even on the testimony, the President’s case was far from being so clear as he had hoped and expected. His chief witness, Wilkinson, could only with difficulty be sustained; and the district-attorney, who began by pledging himself before the court to show the falsity of the charges which had been brought against the General, ended by admitting their truth.