an ordinary witness, instructed the United States Attorney-General to resist the motion, and intimated very strongly that the Court had no power to call upon him to bring State papers before it, and moreover that if the Court should do so he would not obey. It was a difficult position, for, as the Court was a United States Court, only the authorities of the United States could be called upon to enforce its order, and they were completely in Jefferson's hands; but Marshall was equal to the occasion. He declared it to be his duty to issue the subpoena without regard to consequences, and so firm was he that Jeffer son at last yielded, and sent the letter to the Attorney-General to be produced if neces sary. The same independence was shown in his rulings upon the trial. Whatever may be believed of Burr's real motives and objects, there was a strong feeling throughout the entire community that he was conspiring against the integrity of the Union. Jefferson firmly so believed, and all the power and in fluence which the government could com mand was exerted to obtain Burr's convic tion. Curiously enough the whole case turned upon the question of the admissibility of evidence. The overt act of treason al leged in the indictment was the levying of war against the United States at Blennerhassett's Island in the Ohio River. The prosecution having offered evidence to prove acts of other persons at the island, which it was claimed constituted levying war, then proposed to connect Burr with the transac tion by collateral testimony, while admit ting that he was not in fact present. This evidence was objected to as not admissible under the indictment, and it was seen at once that the whole case turned on the admissi bility of this evidence. Probably no ques tion of evidence was ever argued so thor oughly and at such length. The discussion lasted a whole week; all of the eight able lawyers employed on the case were heard at full length, and the abstract of arguments, with the opinion of the Court, occupies sixty
printed pages of the report of the trial. In an elaborate opinion the Chief Justice de clared the evidence inadmissible. That ended the prosecution, and the next day the jury under the charge of the Court acquitted Burr.1 "Marshall," wrote Wirt to a correspondent, "has stepped in between Burr and death." "Why did you not," Wirt was asked, "tell Judge Marshall that the people of America demanded a conviction?" "Tell Aim that." was the reply: "I would as soon have gone to Herschel and told him that the people of America insisted that the moon had horns, as a reason why he should draw her with them."2 It was partly to the tendency on Mar shall's part to give little thought to ordinary conventions, and partly to his kindness of heart, that we should attribute another singu lar occurrence, the fact that he attended din ner at the house of an old friend, one of Burr's counsel, after he knew that Burr was to be present; and when that individual, hav ing previously been brought to Richmond under arrest, examined before Marshall and admitted to bail, was still awaiting the action of the Grand Jury with reference to further judicial proceedings before Marshall him self. He accepted the invitation before he knew that Burr was to be of the company. I have heard from one of his descendants that his wife advised him not to go; but he thought it best not to seem too fastidious or to appear to censure his friend by staying away. It is said that he sat at the opposite end of the table from Burr, had no communi cation with him and went away early. But we must still wonder at his action, which he himself afterwards much regretted.3 In the development of the- system of com mon law and of equity which our ancestors brought with them from their English homes 11 lonorable Charles E. Perkins. 'Honorable Sanford B. Ladd, of Kansas City, Missouri. 3 Professor James Bradley Thayer, of the Law School of Harvard University.
