One of the principals who failed to hear Luther Martin’s masterly argument was Harman Blennerhassett. He felt unwell on Thursday; on Friday he awoke with a continuation of his indisposition attended by a fever which made him so miserable he returned to bed without waiting for breakfast. In keeping with the prevailing custom he dosed himself with three or four grains of calomel.

Blennerhassett was a hypochondriac but on this occasion his ailment was not imaginary. He was a victim of influenza which suddenly struck Richmond in epidemic form. Next day the news reached him in the penitentiary that half the families in the town were afflicted. The disease hit the staff of the Enquirer so hard that it was with the greatest difficulty that popular organ of public opinion continued publication.

Kind Mrs. Gamble heard of Blennerhassett’s illness and did what she could to contribute to his comfort. On Sunday she sent him fruit and fresh butter and fine calf’s foot jelly nicely chilled in ice. The same day he was honored by a call from Mr. Martin and was by that time sufficiently recovered to receive the visitor. Mr. Martin appeared none the worse for wear as a result of his very strenuous labor in court. Blennerhassett recommended his brandy as being considered superior and put a pint tumbler before the Marylander.

No ceremonies retarded the libation. Blennerhassett’s absence from the court during the time Mr. Martin held the floor was not to deprive him of the privilege of getting a generous sample of the gentleman’s eloquence and wisdom. The visit did not exceed thirty-five minutes. Yet so fluent was the speaker that he delivered an account of an entire week’s proceedings in the trial. He not only quoted verbatim long extracts from his own speech but also extracts from the speeches of other lawyers on both sides of the case.

Mr. Martin also regaled his host with whole columns, from a series of papers, which he had written under the pen name of Investigator. He also caricatured Jefferson and gave a history of his acquaintance with Burr, expatiating on the latter’s virtues and suffering. These last were not received enthusiastically by Mr. Blennerhassett. At the moment he happened to be feeling particularly aggrieved over the manner in which he had been duped by the adventurer. In fact, the laudatory comments on Burr made by Martin raised the suspicion that he had been deliberately sent by Burr to restore Blennerhassett’s good humor as a precaution against the ever-present danger of his turning state’s evidence.

Among other things Martin expressed the opinion that because Burr had alleged he expected a war between Spain and the United States his expedition was lawful. But, countered Blennerhassett, “may not a jury think Burr did not expect war and find their verdict then on the confession?”

If Burr supposed that Blennerhassett would be favorably impressed by Martin he was greatly mistaken. The latter had hardly left his presence before Blennerhassett sat down and went to work drawing one of those pen portraits which were so much the vogue at the time among those who laid any claim to literary talent.

“His manner,” wrote Blennerhassett, “is rude, and his language ungrammatical, which is cruelly aggravated upon his hearers by the verbosity and repetitions of his style.... Fancy has been as much denied to his mind as grace to his person or habits. These are gross, and incapable of restraint, even on the most solemn public occasions.” The influenza skipped the Chief Justice. Perhaps it considered it futile to attempt an assault on his hardy constitution. It was just as well for, over the weekend, he had strenuous work to do. Court had adjourned late Saturday afternoon. It was scheduled to reconvene early Monday morning. In the approximately thirty-six hours between adjournment and reconvening, it was Judge Marshall’s task to review the arguments presented, weigh them against each other, and arrive at a conclusion to be contained in a written opinion. The Judge was taking no chances. He knew that whatever opinion he might render would be immediately scanned in Washington and perhaps misconstrued, that any slip he might make would be used against him.

Sunday was an important day in Richmond when almost everybody went to church. The Roman Catholics were ministered to by the AbbÉ du Bois, a refugee from the French Revolution, who said mass in the courtroom of the Capitol. Methodists and Baptists were numerous and had their own churches.

The House of Delegates was the scene of an unusual example of denominational co-operation between the Episcopalians and the Presbyterians. The two sects were led respectively by Parson John Buchanan and Parson John Blair, devoted friends who, in their lighter moments, discussed philosophy and punned in Latin. Buchanan was a bachelor and well heeled. Blair had numerous progeny and was hard pressed to make ends meet. So Parson Buchanan applied his logic to the practical end of convincing Parson Blair that all of Parson Buchanan’s fees for marriages, funerals, and the like should by right go to Parson Blair.

The Presbyterians did not yet have a church and the only Episcopal church was St. John’s, on a high hill to the east and hard to reach. The upshot of it was that Episcopalians and Presbyterians worshipped together in the House of Delegates, with Parson Buchanan and Parson Blair occupying the pulpit on alternate Sundays.

Whether Sunday, August 30, 1807, was Parson Buchanan’s turn in the pulpit or Parson Blair’s history does not record. Judge Marshall was an intimate of both parsons and a devout churchman as well. But it is unlikely that, with the exacting business in hand, he found time to attend church that day.

Even with that allowance there was not much time for reflection. A plausible explanation is that while the lawyers were debating the Chief Justice was formulating his opinion. This one was to be the longest in the whole trial and the one containing the most references to the authorities. It may well be that he made notes of these authorities cited by the speakers as the argument proceeded.

Did he work by candlelight long into the night? Did he wake up with the birds and labor during the cool hours of the early morning? Or did he sit under the trees in his spacious yard during the day, braving the critical looks of his neighbors as they returned from church? Whatever the Chief Justice’s method, when court met on Monday morning, August 31, he was ready to deliver his opinion. Counsel, jury, and public in attendance knew that the crisis in the trial had been reached.

The ever-courteous Marshall made use of his introduction to compliment counsel on both sides. The motion, he said, had been argued in a manner worthy of its importance and with an earnestness evincing the strong conviction felt by opposing counsel that the law was with them.

“A degree of eloquence,” he declared, “seldom displayed on any occasion has embellished a solidity of argument and a depth of research by which the court has been greatly aided in forming the opinion it is about to deliver.”

The Chief Justice restated the issue which was that, the testimony having shown that the prisoner was not present when the overt act mentioned in the indictment took place, objection had been raised that testimony offered to connect him with those who committed the overt act was totally irrelevant and therefore must be rejected.

His first task was to clarify the confusion arising out of the opinion in the Bollman and Swartwout case, which already had been brought up by counsel on both sides. It was said that it was on the basis of that opinion that the Grand Jury had seen fit to bring in the indictments for treason. The offending phrase was the one which said: “If a body of men be actually assembled for the purpose of effecting by force a treasonable object, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leaguered in the general conspiracy, are to be considered as traitors.”

If the phrase meant what it seemed to mean then, surely, the absence of Colonel Burr from Blennerhassett Island at the time of the alleged overt act in no way relieved him of his guilt. Was the phrase a mere obiter dictum or chance remark as the defense maintained, or was it a formal declaration of the court changing the previous conception of treason as laid down in the Constitution as the prosecution assumed it to be? The time had come for the Chief Justice to make known which interpretation was correct.

He had heard, said Judge Marshall, that his opinion had been construed to mean that any assemblage whatever for a treasonable purpose, whether in force or not in force, whether in condition to use violence or not in that condition, was levying war. It had not been expressly advanced by the bar, but he understood it had been adopted elsewhere. (Anyone who was at all conversant with the existing political situation knew that the interpretation referred to was that of President Jefferson. It had been adopted by his partisans, and it was because it had gained such a firm hold that the incidents of Blennerhassett Island, mild as they were, were assumed by the prosecution to fulfill the Chief Justice’s definition of an overt act of levying war.)

Judge Marshall pointed out that the court which gave the opinion was composed of four judges. Of these he said one was sick. He seemed uncertain as to this judge’s opinion. Three judges were absent. Therefore, said the Chief Justice, if the three judges who were absent concurred with the sick judge who was present “and perhaps dissents,” a majority of the judges might overrule the decision. A critical observer might have charged that the Chief Justice was falling back upon a good many suppositions.

What, he asked, was levying war? He had, he said, looked at all the English authorities and, so far as he could see, levying war meant just that. The words had received no technical meaning different from their natural meaning. The assemblage must be a warlike assemblage, carrying the appearance of force, and in a situation to practice hostility. The Chief Justice added for good measure that the American judges, so far as their opinions had been quoted, seemed to go even farther than the English authorities and require the actual exercise of force.

But, he reminded, it had been said that all these authorities had been overruled by the decision of the Supreme Court in the case of the United States versus Bollman and Swartwout. Now it would be expected that an opinion which was to overrule all former precedents and to establish a principle never before recognized would be expressed in plain and explicit terms. Had the intention been to make so material a change, then the Court ought to have expressly declared that any assemblage of men whatever who had formed a treasonable design constituted the fact of levying war. Yet no such declaration was made.

What was more, said the Chief Justice, in the case of Bollman and Swartwout there was no evidence that even these two men had met for the purpose of executing a plan. In their case the issue of an assemblage did not appear. In short, the Chief Justice asserted that general expressions ought not to be considered as overruling settled principles without a direct declaration to that effect.

Thus at last the ghost of the opinion in the case of Bollman and Swartwout was laid by the same hand that had raised him. At least the Chief Justice must have hoped so. It was not often that his rare gift of logical reasoning was put to so severe a test. By this time counsel for the prosecution must have seen how the wind was blowing, if they had ever harbored any doubts about it.

The Chief Justice now got to the nub of his opinion. It was essential, he said, that an indictment be explicit as to the nature of the crime and the place where it was committed. Otherwise the accused would not know how to defend himself. The whole treason laid in the indictment was the levying of war on Blennerhassett Island and the whole question was whether the prisoner was legally present. It was as if no other overt act ever had existed. Therefore, said Judge Marshall, the only point the Court was examining was the constructive presence of the prisoner at the fact charged.

Now, said he, had Burr arrived on the island he would have been present in fact. Or, had he taken a position near enough to co-operate with those on the island, the question of whether he was constructively present would be a compound of law and fact which the jury would decide with the assistance of the Court as respected the law.

On the other hand, if the prisoner was not with the party at the time, did not intend to join it, and if his co-operation was at a great distance, in fact in a different state, then he was not constructively present. Therefore the Judge confessed that he was strongly of the opinion that proof of the actual or legal presence of the prisoner on the island by the evidence of two witnesses could not be made.

But, continued the Judge, the prosecution might contend that the indictment did not charge the prisoner with actually being present at the assemblage on the island, but that though he was not at it he caused it. If the law was as the prosecution maintained then the procurement of the assemblage took the place of presence at the assemblage. In that case, he insisted, under the Constitution procurement of an assemblage should be testified to by two witnesses just like presence at an overt act.

Judge Marshall pointed out that, because the advising of treason or the procuring of treason was a secret matter of the mind rather than an actual deed, it might be objected that it would be hard to prove. But, he retorted, the mere difficulty of proving a fact surely did not justify a conviction without proof.

Was the testimony the Government proposed to offer to prove the overt act laid in the indictment? No, it was evidence of subsequent transactions at a different place and in a different state. Such testimony, he declared, was not relevant. It could be produced only as corroborative or confirmatory testimony, if it could be produced at all.

The Chief Justice had now dealt with the decision in the Bollman and Swartwout case and made it clear that it had not been intended to serve as a new rule of law introducing constructive treason into the United States. He had followed that up by showing that neither Colonel Burr’s actual presence nor legal presence on the island at the time of the overt act had been proved. This done he was coming to the end of his opinion. The words he was about to speak had evidently been carefully chosen. He must have been aware of the solemnity of the moment even though he may not have foreseen that he was speaking for posterity as he began:

“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 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.

At the order of the Chief Justice the jury then retired. The assemblage was not kept long in suspense. Soon the jury was on its way back to the courtroom led by its foreman, Colonel Carrington. Asked by Judge Marshall if a verdict had been reached, the Colonel arose and replied: “We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty.” Not guilty “by any evidence submitted to us.” Did the jury then mean to imply that had some of the evidence not been withheld under the motion made by the defense and sustained by the Chief Justice, it would have found Aaron Burr guilty? Would that not be the impression made on the public? If such an impression were made on the public could the verdict then be regarded as an exoneration?

Colonel Burr did not think so. He was on his feet at once protesting and he was supported in his protest by other counsel for the defense. The Colonel called the verdict unusual, informal and irregular. He demanded that the objectionable qualification be stricken out.

Luther Martin called it a tempest in a teapot. Colonel Carrington interposed to say that if the objections to the offending passage were continued the jury would strike it out. He was immediately contradicted by his fellow juryman Richard E. Parker, an ardent Jeffersonian, who shouted that it had been inserted deliberately and that it would stay there.

Judge Marshall listened patiently throughout the controversy and compromised the issue by stating that, in the opinion of the Court, the verdict was in effect the same as a verdict for acquittal. He would therefore let it stand in the bill as the jury had pronounced it. The entry made on the record would be simply, “Not Guilty.”

With his customary courtesy the Chief Justice thanked the jury for its patient attention during the whole course of the long and tedious trial and dismissed it. Attorney Hay, recognizing the hopelessness of getting a verdict of treason on the basis of the assemblage on Blennerhassett Island therefore entered a nolle prosequi to the indictments of Blennerhassett and the other alleged conspirators. That is to say, having failed to convict Burr, the Government would drop the charges against his subordinates. However, Hay asked that they and Burr as well be still held on charges of treason on the possibility of some other overt act elsewhere being charged against them. This move was made by Mr. Hay at the instigation of President Jefferson. Again the Chief Justice listened patiently through another long argument over the legal point involved. When it was over he ruled against the request, pointing out that all of them still had to be tried before the present Court on a charge of misdemeanor.

Yet another protracted argument arose over the proper bail for Aaron Burr. His counsel contended that he should give none at all. Now that the Colonel’s neck was safe it was no longer necessary for the Chief Justice to make every concession the defense requested. He insisted upon bail and ordered it set at $5,000. In spite of the defense’s contention that no one dared perform this favor for Colonel Burr because of public opinion two sureties at once presented themselves and, on September 8, Aaron Burr found himself a free man. For nine weeks he had been under confinement.

This being the sickly season in Washington the President had retired to Monticello. Postmaster Gideon Grainger had installed a special courier service between Washington, Richmond, and Monticello and Secretary of State Madison’s summer home, Montpelier. It was to Monticello that Hay reported to the President on the Government’s defeat which he attributed to the unfriendly attitude of Judge Marshall. To show that this was not his opinion alone he stated that “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.”

Jefferson was willing enough to adopt this excuse for the failure of the prosecution. He replied at once, “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 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.”

There was no doubt as to where the President believed the defect to lie. Burr had escaped conviction of treason. But in his trial on the charge of a misdemeanor there was a prospect that the witnesses, who had been refused opportunity to testify by the Chief Justice, would be heard.

“Not proved to be guilty by any evidence submitted to us.” The President in his letter made it clear that Mr. Hay was to be responsible for seeing that the evidence which had been withheld reached the eyes and ears of Congress. Then Congress would know where the defect lay and provide the proper remedy.

The President had abandoned the hunt for Aaron Burr. He was now hot on the trail of the Chief Justice.