Chapter VIII: Part 8

General Morgan was followed on the witness stand by his father who confirmed in substance the evidence presented by his son. He explained further that he had enjoyed a long acquaintance with Burr and had received many civilities from him. In fact, said Colonel Morgan, when Burr was being persecuted after his duel with Hamilton he had invited Burr to stay with him at Morganza.

Colonel Morgan considered Burr’s conversation at dinner so reprehensible that he informed his neighbors, General Neville and Judges Tilghman and Roberts. It was they, he said, who wrote a joint letter of warning to President Jefferson.

General Morgan was recalled to the stand by Burr just long enough to be asked what state of mind his father was in when General Neville and Judge Tilghman visited him. General Morgan replied that his father had recently had a fall which had done him considerable injury. Colonel Burr wanted to know if General Morgan had not made an apology to Judge Tilghman for the state of his father’s mind. But the only admission Burr could wring from the witness was that he had said his father was old and infirm and, like other old men, told long stories and was apt to forget his repetitions.

Thomas Morgan, the General’s younger brother, on taking the stand quoted Colonel Burr as having said that under the existing government there was no encouragement for talents; that John Randolph of Roanoke had declared on the floor of the Congress that men of talents were dangerous to the Government. He said Burr next asked him whether he, who at the time was studying law, would be interested in a military enterprise. And, said Tom, when he replied that it depended entirely on the object, Burr explained: “I wish you were on your way with me.”

The testimony now returned to the Blennerhassett household. The next witness was Jacob Allbright, a stolid Dutchman who, like Peter Taylor, had been in the employ of the Blennerhassetts. He testified that he had been invited to go on the expedition and that he also had been offered a dollar a head for any volunteers he could get from the Dutch colony in New Lancaster, Ohio, from which he came.

But Allbright’s most important testimony had to do with the appearance on the scene of the assemblage of Brig. Gen. Edward Tupper, of the Ohio militia, for on it depended proof of the use of force which might be construed as levying war. According to Allbright, General Tupper laid his hand on Blennerhassett and at the same time declared: “Your body is in my hands, in the name of the Commonwealth.” Then, continued the witness, seven or eight muskets were leveled at him at which Tupper protested, “Gentlemen, I hope you will not do the like.”

To this, said Allbright, one of the men who was about two yards away replied, “I’d as lieve as not.” This threat, Allbright testified, changed Tupper’s attitude and he wished Blennerhassett good luck. Allbright’s testimony was as close to showing an act of violence as that of any of the witnesses.

Recognizing the seriousness of the charge Burr questioned the witness at length in an effort to show that Allbright’s testimony had been different on an earlier occasion and, as he expressed it, “to degrade the witness by invalidating his credibility.”

Mrs. Blennerhassett, in Natchez, expressed herself as being shocked when she learned of the testimony of their former servants. In a letter to her husband she set forth in strong words her opinion of Peter Taylor and his responsibility for her husband’s indictment. “Gracious God!” she exclaimed, “confined in a prison in the dog days, and by the perjury of a wretch not many degrees from a brute!”

Next came the testimony of one Peter Love, still another of Blennerhassett’s retainers, a man who had volunteered for the expedition. He placed the number of persons assembled on the island at between twenty and twenty-five. He mentioned men with rifles, two braces of pistols, and a dirk belonging to Blennerhassett. But he weakened the charge of armed force by testifying that General Tupper and Blennerhassett had parted “in the greatest friendship,” or so he understood from others. Nor was he of much help to the prosecution when, in reply to a question, he said it was his understanding the expedition’s purpose was the settlement of the Washita lands.

On being asked by Mr. Parker, a juror, if he had seen any bullets run, Love replied that he had, but he could not say how many. “I was a servant in the house,” explained Love, “but could not mind my own business and other people’s too.”

Next to be heard was Dudley Woodbridge, Blennerhassett’s business partner and a man of parts. They operated together under the firm name of Dudley Woodbridge & Company. He testified that in September, 1806, Blennerhassett had called on him with Colonel Burr at the company’s counting house in Marietta. There, said Woodbridge, Blennerhassett told him Burr wished to buy a quantity of provisions.

The Colonel, said Woodbridge, then inquired the price of provisions and the cost of boats best calculated to carry the provisions up and down the river. Burr left with him a memorandum of the provisions wanted and also put in an order for the boats to be built. The latter were to be of the Schenectady model such as were used on the Mohawk River.

The witness described Burr ordering provisions which included pork, flour, whiskey, bacon, and kiln-dried meal, but the only thing actually purchased was the pork. The boats, said Woodbridge, were built on the Muskingum River about seven miles above Marietta. Only eleven of the fifteen ordered were completed. He then went on to tell about their seizure by the Ohio militia following publication of the President’s proclamation. He also told of being on the island the night of December 10, but added nothing new to what other witnesses had testified as to the happenings there.

Then, under the direction of Mr. Hay and with the consent of the Court, Woodbridge proceeded to recount the circumstances leading up to the assembly on the island. Late in August or early in September, he said, Blennerhassett mentioned to him that he had embarked on an enterprise with Colonel Burr; that General Eaton and others were engaged in it and that the prospects were flattering. From Blennerhassett’s statements Woodbridge inferred that the object was Mexico, though he admitted that that was not positively stated.

Blennerhassett, said Woodbridge, asked him if he had a disposition to join but he replied that he preferred his present situation to the uncertainties of such an expedition.

“You know Mr. Blennerhassett well,” remarked Colonel Burr in commencing the cross-examination. “Was it not ridiculous for him to be engaged in a military enterprise? How far can he distinguish a man from a horse? Ten steps?”

“He is very nearsighted,” agreed Woodbridge, “and cannot know you from any of us at the distance you are now from one another. He knows nothing of military affairs. I never understood that he was a military man.”

“Is he esteemed a man of vigorous talent?” interposed Mr. Wirt.

“He is,” replied Woodbridge, “and a man of literature.” Then he delivered his estimate of his partner’s limitations: “But it was mentioned among the people in the country that he had every kind of sense but common sense; at least he had a reputation of having more of other than of common sense.”

To the question: “What were his favorite pursuits?” Woodbridge mentioned “chemistry and music.”

Here Court adjourned for the day. When it convened on the following morning three more eye-witnesses of the events on Blennerhassett Island were heard. Simeon Poole, who was not on the island itself but on the mainland opposite it, saw what looked to him like sentinels and heard what sounded like a watchword. Maurice P. Belknap was on the island and saw men cleaning rifles. He contradicted Poole’s testimony by stating that though he was a stranger he had been admitted to the island without being challenged and having to give a watchword. Edmund P. Dane, too, was permitted on the island to wander at will about the Blennerhassett mansion. Though he was a total stranger he said nobody appeared to be greatly alarmed.

The sum total of the evidence suggested that if this were levying war against the United States it was a very tepid manifestation of it.

Meanwhile Colonel Burr and his counsel were chafing over the direction the testimony was taking. At last they could restrain themselves no longer. The evidence that was being heard they protested was collateral evidence. They insisted that the prosecution be made without further delay to produce all the testimony they had relating to overt acts.

Counsel for the prosecution on the other hand maintained that it was unusual, irregular, and improper thus to restrict the testimony. The whole evidence, they contended, should be submitted to the jury whose province it was to decide whether there had been war or not.

Judge Marshall interposed to say there was no doubt the Court must hear the objections to the admissibility of evidence. Mr. Wickham urged the gentlemen of the prosecution to introduce if they could any more testimony they might have pertaining to what they deemed to be the overt acts. Mr. Hay objected to this course of procedure. But, he agreed, if the gentlemen of the defense were determined to make their motion they might proceed.

That motion, proffered by Mr. Wickham, was that until an overt act had been proved all other evidence was collateral, and therefore irrelevant and inadmissible.

Since apparently the Government’s witnesses to the alleged overt acts on Blennerhassett Island on the night of December 10, 1806, had been exhausted, if the motion of the defense were sustained no more witnesses could be heard. The practical effect of this would be that, of some 140 witnesses assembled by the Government, only the handful who had already appeared on the witness stand would be permitted to give their testimony. If the Chief Justice were to rule in favor of the motion of the defense it was tantamount to his taking from the jury the privilege of deciding what testimony was relevant and arrogating it to himself.

Therefore if the motion were sustained and, subsequently, Colonel Burr acquitted, it took no exceptional prescience to foresee that the enemies of Judge Marshall could charge that Burr’s acquittal resulted from the fact that the Chief Justice had suppressed the Government’s evidence. In refusing to commit Burr for treason the Chief Justice had then declared that the Government had not produced sufficient evidence. So the Government had gone out into the highways and byways and come up with more than a hundred witnesses, which in all conscience should have been enough to convict Aaron Burr of anything. And now, if the Chief Justice granted the defense’s motion, he would put himself on record as refusing to admit the testimony of the witnesses that the Government had so zealously gathered together in Richmond.

No question about it--the Chief Justice found himself in a tight spot.

_Chapter_ XV

It is not every day that a lawyer has a Vice-President of the United States as his client. And subsequent history has shown that it is exceptional indeed for a lawyer to have the privilege and honor of exercising his talents to save a Vice-President of the United States from the gallows. As John Wickham rose to defend his motion, with his shrewd sense of values, he could not have failed to be aware that this was the greatest moment in his career.

Obviously counsel for the defense were not surprised when the Chief Justice granted Mr. Wickham the right to make the motion. As learned in the law as the gentleman was known to be, he could not have made the finished argument he did without long and careful preparation.

He approached his task with an air of confidence derived from his acknowledged leadership at the Virginia bar and the many victories to his credit, a number of them over the plodding Hay. This confidence was fostered by his realization of the great difficulty of sustaining any charge of treason under the Constitution of the United States and of the weakness of the evidence in this particular case. Suave, refined, and elegant, he was the envy of his less distinguished legal brethren.

The weather had turned hot again but neither Mr. Wickham nor his colleagues were to let themselves be discouraged by so trifling a matter, or to shorten their arguments so much as a sentence in order to save themselves exertion.

In introducing his case, Mr. Wickham proceeded at once to scotch the suggestion put forward by the prosecution that the motion to disqualify witnesses had been presented because the defense wished to suppress evidence. On the contrary, said his lawyer, the prisoner was more than willing that everything should be disclosed. But, the speaker pointed out, there was a practical difficulty resulting from the great number of witnesses the Government had summoned. If, he said, all of the 140 were examined, not only weeks but months would elapse, and throughout it all his client would be under confinement just as though he had been found guilty and was serving a sentence.

Having dealt with that matter to his satisfaction Mr. Wickham next directed his attention to the most obvious weakness in the prosecution’s case. That was its admission that when the alleged overt act had taken place on Blennerhassett Island Colonel Burr was many miles away.

To refresh the minds of the jury, he quoted from Article III, Section 3 of the Constitution which deals with treason against the United States and lays down that it “shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort” and adds the safeguard that “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

To Mr. Wickham’s way of thinking the language of the Constitution made it abundantly clear that no person in the United States could be convicted of treason in levying war who was not personally present at the commission of the act.

And what was the prosecution doing? It was resorting to artificial rules of construction so that the words of the United States Constitution would be made to take an artificial meaning based on the statute law and common law of England. Mr. Wickham denied emphatically that the statute and common law of England could properly be applied to the Constitution of the United States. Mr. Wickham would go even farther than that. He would assert that no rule which holds a person guilty of treason who is absent from the scene of the overt act had ever practically obtained even in England.

Oh yes, Mr. Wickham, master of precedent that he was, knew that there were instances in English history which might be cited by the prosecution. But he had a remedy for that. He would mention them himself before the prosecution had a chance to do so. So he frankly admitted that Lord Coke, eminent English jurist and legal authority, and other writers after him, had laid down that there are no accessories in treason either before or after the fact, but that all are principals.

However, said Mr. Wickham, in spite of the principle declared by the authorities, no actual adjudications bear them out except that in the case of Sir Nicholas Throgmorton in the reign of Bloody Mary.

Mr. Wickham was well aware that there was not a lawyer of any standing at the Virginia bar who was not conversant with the account of the Throgmorton case as presented by Judge St. George Tucker in his appendix to _4th Blackstone’s Commentaries_. Throgmorton had been charged with imagining the Queen’s death. At his trial the doctrine of constructive treason was insisted on by the prosecution and sanctioned by the judges. When Throgmorton requested that the law books be consulted the court told him none might be brought in, that they knew the law sufficiently without a book. And when the jury brought in a verdict of not guilty contrary to the wishes of the judges, the court committed them all to prison and fined them heavily.

But, said Mr. Wickham, the court on that occasion was so contrary, not only to the rules of law and justice, but even to those of decency, that he persuaded himself counsel on the other side would not rely on it as authority.

Mr. Wickham, intimating that he had made a diligent and exhaustive search of all the authorities, declared that he could find no case in English law where a person who was not present at the scene of the overt act had been convicted or even brought to trial, except that of Mary Speke, in the fourth year of the reign of King James II, at the time of Monmouth’s Rebellion. But that, Mr. Wickham made clear, was when the spirit of persecution was high. He thought it probable that it was one of the cases decided by the execrable Judge Jefferies at the Bloody Assizes.

Mr. Wickham agreed that in England there was a treason for compassing the death of the King where the mere agreement to do the act itself constitutes the crime. He thanked God that in this country there was no subject to whom such a law applied and that the United States Constitution strictly forbade that intention alone--which was so liable to be misunderstood and misrepresented--should in any case be construed into treason.

He cited also the cases of Mrs. Elizabeth Gaunt, an Anabaptist who was burned alive, and Lady Lisle, widow of a regicide, as persons convicted as accessories merely for receiving traitors. But in both instances, he emphasized, sentence had been passed by the wicked Judge Jefferies. After Mr. Wickham had thus associated these possible precedents with such outrageous circumstances the prosecution would be daring indeed to use them.

Having warmed to his task, Mr. Wickham proceeded to give his audience an impressive demonstration of his legal erudition. He referred to Foster’s _Crown Law_ and from that skipped to Hume’s _History of England_. He quoted passages from Tremaine’s _Pleas of the Crown_ and boldly plowed his way through Hale, Stanford, Brooke, and Hawkins. He alluded to the conduct of the Duke of Cumberland after the Battle of Culloden, and made mention of Flora Macdonald who had helped with the escape of the Pretender. Surely, asserted Mr. Wickham, she would have been charged with treason if the doctrine that persons absent and not in arms had prevailed in England!

From citing the authorities in English, Mr. Wickham turned to Latin declaring that “_Dixit quod in hoc quod factume est proditio, non potest esse accessarius felonice et proditire non potest esse accessarius_.” Not content with Latin he lapsed into some strange tongue that must have confused Mr. Robertson, the reporter, in spite of his knowledge of five languages. But Mr. Robertson did his best and set it down thus: “_Nota P. Hussey C.I. que accessory ne poet este a treason; le recetment de traitor, ne poet este tantum felony, mes est treason_.” Mr. Wickham’s was a brilliant display of erudition. Perhaps the passage quoted was as familiar to his fellow lawyers as the golden bird of prey on the sign in front of the “Eagle Tavern.” One wonders what the jury made of the gentleman’s scholarship and in which direction they were swayed.

Again Mr. Wickham repeated the strict definition of treason as set down in the Constitution--the levying of war against the United States, the overt act and the two witnesses. Its object, he said, was clear. It was to perpetuate the liberties of the people of this country. The framers of the instrument well knew the dreadful punishments inflicted and the grievous oppressions produced by constructive treason in other countries. That is why their language was plain, simple, and perspicuous.

Mr. Wickham demanded of opposing counsel what security would be afforded by the Constitution to the best or meanest man in the country if the construction on which they insisted was correct. If it was correct then all that was wanted to fix the guilt of treason on an individual was to have an insurrection existing somewhere in the United States, no matter where.

Now, he said, suppose the Government should wish to destroy any man. They find him in Georgia, and the insurrection happens in New Hampshire. This would suffice for the purpose. But if their cause was to go on the prosecution would have to contend that even less would suffice to create treason, that even an insurrection was not necessary, but that a peaceable assemblage going down the Ohio River would be sufficient for their purpose.

Continuing to expound his hypothetical case Mr. Wickham suggested that under the prosecution’s construction a man might be seized and hurried by force from New Hampshire to Georgia, or to any part of the United States which his accusers might choose as best for the purpose. Obviously he had reversed the journey of his client from Alabama to Virginia. It would be in vain for him to prove that he was not present when the offense of which he was accused was committed, that he never at any period of his life had been there, that the actors and the scene were alike unknown to him. Wretches who from interest or revenge were ready to further the views of his oppressors, would present themselves and he might be convicted of levying open war against the Government with people whom he never saw and at a place where he never was!

The hour was now growing late and Mr. Wickham had talked the better part of the day. His argument might have proved tedious to his audience composed entirely of men. Surely a little ribald humor was in order after all the heavy reasoning he had forced them to endure. So, casting aside his dignity, Mr. Wickham gave it to them.

He noted that by an act of Parliament in the reign of Henry VIII, it was made treason for any woman the king should marry, thinking her to be a true maid, or virgin, to marry him if she were not so.

Now, ventured the speaker, the paramour of such a woman (Mr. Wickham supposed her to be a maid of honor and he a lord of the bedchamber) might aid her in imposing on the king. She is tried, found guilty, and executed. How would her lover be charged? Would he be indicted by the name A. B., Gentleman, or by his title of Lord, for marrying the king, not being an unspotted virgin or, to use the language of the act, “a pure and clean maid”?

“This,” concluded Mr. Wickham, “may seem to be treating the subject with more levity than I could wish to do, but the argument directly applies ... for it is as much a physical impossibility that Colonel Burr should be at Blennerhassett’s Island and in Kentucky (places several hundred miles distant) at the same time, as that an individual should be at the same time a man and a woman.”

Shortly thereafter the court adjourned for the day. No doubt those who had been present retired to their taverns for a spot of brandy and laughed over Mr. Wickham’s merry argument about the maid of honor and the lord of the bedchamber who was made to marry the king in the indictment. No doubt there were some instances where the quick-witted had to repeat the argument and help the slow-witted to see the point of the joke.

Of Richmond’s public establishments for food, refreshment, and shelter for the night none--including even The Eagle--surpassed the Swan Tavern. Standing on Broad Street that separated the Capitol Square and its public buildings from the stylish residential quarter of Shockoe Hill, identified by a sign bearing a white swan on a pale blue background, it was largely favored by the judges of the Court of Appeals and legislators of high rank. Its proprietor, Col. John Moss, was a man of great natural dignity enhanced by starched linen. The Colonel had the reputation for setting an excellent table over which he presided in person. His ham was always prime, his fresh meats the best the market could afford. If any criticism was heard it was only that Colonel Moss was “a nice calculator who aimed to give his guests just enough but no more.” But if his food was the best he ought not to be condemned for seeing that none of it was wasted.

Also reflecting the Swan’s high standards were its wine cellar and its bar. The former was stocked, as the popular expression of the day defined quality, with “the best London Particular.” The bar was a favorite place of assemblage for the lawyers after a hard day in court. It was presided over by one Lovell, a droll fellow whose wit was as dry as his wines and spirits.

It was perhaps not entirely accidental that the house which Colonel Burr was sharing with Luther Martin was situated close to the Swan and its bar. There, when he was not otherwise engaged, Mr. Martin was likely to be found.

On retiring to the Martin house between sessions the Colonel often found Theodosia and little Aaron there. Theo was exercising a careful supervision over the housekeeping and the house was becoming a popular meeting place for Burr sympathizers. Many noticed and remarked that, in spite of his years, old Martin was beginning to exhibit a romantic attachment for Theodosia.

To Blennerhassett, under lock and key at the penitentiary and alone, Burr wrote apologetically: “I am surrounded by visitors, which prevents me from adding more than the assurance of my respect and attachment.”

One emissary between the two accused reported to Blennerhassett that “Burr lives in great style and sees much company within his gratings, where it is as difficult to get an audience as if he were really an emperor.” Another described Burr as being “as cheerful as ever. But as a jockey might restore his fame in the course, after he had injured it on a tight rope, so perhaps the little ‘Emperor’ at Cole’s Creek, may be forgotten in the attorney at Richmond.”

Blennerhassett’s use of the word “Emperor” as applied to Burr is peculiarly reminiscent of the language Peter Taylor attributed to him on their journey back to the island from Kentucky in the fall of 1806.

The heat was oppressing Blennerhassett again. “I find it very agreeable,” he wrote in his diary, “to get upon a chair by which I am enabled to raise my mouth to the lower tier of openings in the gratings of the windows and breathe another air for half an hour.”

When Court convened next day Mr. Wickham took up the question of what constituted an overt act of levying war, which must be proved before the guilt of treason can attach to the principal.

Here the Chief Justice interrupted to inquire if any adjudged case could be produced where the court was called upon to decide, and did decide, that the evidence submitted to the jury did or did not amount to proof of overt act. Mr. Hay broke in to say that he never knew the attempt to be made but once. That was before Judge Patterson, of the Supreme Court, and it had been unsuccessful. Mr. Wickham, notwithstanding, insisted that, “It is the right and duty of the court to instruct the jury what amounts in law to an overt act of levying war.” That was an important point and more was to be heard of it. Mr. Wickham concluded his argument with a satiric peroration of which Mr. Hay was the butt: “But what did the gentleman say in defining the ‘levying of war’? That there is no necessity for arms, nor for the employment of force! That there is no necessity even for potential force to effect the intended purpose by terror! That there is no necessity for the act to be public! That an overt act of treason may be committed without arms, without force, either actual or potential. If this were the law there would be no safety!”

In the time allotted to him Mr. Wickham had fairly well covered the English precedents touching on the case and exhibited other evidences of his profound legal knowledge. Had the poet Tom Moore been present he would have had even more tangible reason than enjoying the gracious hospitality of the gentleman’s house for saying that Mr. Wickham could hold his own in any court.

At this point Mr. Hay surprised the Court and the defense by announcing that he had two more witnesses to the alleged overt act whom he had somehow overlooked. One was Israel Miller who had come down from Pittsburgh with Comfort Tyler’s party. The other was Purley Howe, an Ohioan, who had made forty boat poles for Blennerhassett and, on the fateful evening of December 10, had come to the Ohio bank of the river to deliver them. The two witnesses added little to the testimony that already had been given. Miller made an estimate of men and arms and Howe testified to having seen two sentinels armed with rifles on the flatboat that came to the Ohio bank to pick up the boat poles.

The burden of the defense was now assumed by the ponderous Edmund Randolph. As befitted an elder statesman he announced that his duty as counsel to Mr. Burr was fortified by something more important, namely his duty as a citizen to combat and, if possible, refute the pernicious doctrine of constructive treason. He quoted Montesquieu to the effect that, “If the doctrine of treason be undeterminate in any country, however free its form of government, it is sufficient to make it degenerate into tyranny.”

In his zeal to protect his fellow man the gentleman was so bold as to lecture the Chief Justice. He adverted to Judge Marshall’s embarrassing statement in the case of Bollman and Swartwout that to be guilty of treason a person need not be present at the scene of the alleged overt act. Mr. Randolph said he could not bring himself to believe that the Supreme Court meant to uphold constructive treason. He contended that even if the language of Judge Marshall in his capacity as Chief Justice had been explicit and imperious, nevertheless the same Judge Marshall as the presiding officer in the subordinate court ought not to conform to it.

Realizing that this was rather a large order Mr. Randolph hastened to add, “I do not, I dare not, ask you to rebel nor prescribe what you should do. But let us pray Heaven to stay the arm of the destroying angel!”

Having thus adjured the Chief Justice, Mr. Randolph cited the opinions of the American justices--Patterson, Iredell, and Chase--claiming that they showed that an assemblage without force could not be regarded as treason. He agreed with his fellow counsel, Mr. Wickham, that such a contention was repugnant as well to the English doctrine. “Foster, Hale, Hawkins, Coke, Kelynge, Reeves and all other writers,” he asserted, “you will find concur in proving that not a single indictment for treason in levying war has ever been carried into complete effect in England without actual force.” Mr. Hay interrupted to explain that he had only meant to say that the provisions of the Constitution ought to be construed according to the principle of common sense.

Mr. Randolph pricked up his ears at the words “common sense.” With the ferocity of a tiger attacking its helpless prey he sprang upon the poor District Attorney.

“Common sense,” he sneered. “Common sense, it seems, creates an accessory and introduces him as a principal, contrary to the Constitution. Common sense does not say, like the Constitution, that treason consists in levying war, but brings in a new person to participate in the guilt and punishment of treason. This common sense extends, instead of restraining, the rigor of capital punishment. This common sense is oppression and tyranny. I pray Heaven to save us from the deductions of such common sense as this!”

Mr. Randolph next complained of the vagueness of the indictment. The accused, he charged, must shape his defense to what does not appear. The laws of this country called on him to defend himself, but they had not apprised him against what. He must, lamented Mr. Randolph, sit down and conjecture what the charge was. And where, he asked, was the accused to obtain the information? Was he to write to the President, or to the Federal Judge, or to the public prosecutor?

In his little essay on “Common Sense” Mr. Randolph mentioned its having created an accessory and introduced him as a principal. He now returned to that theme, contending that before anybody else could be tried, the principal in the case had first to be convicted. If, he argued, the previous conviction of the principal was not necessary, then the Government could bide its time until the death of the principal so that the accessory might thus be deprived of the main chance of disproving his offense and thereby be unjustly oppressed. This seemingly profound reasoning was the defense’s subtle means of insinuating that if there had actually been an overt act the principal in it was not Burr, who was many miles away, but Harman Blennerhassett who was actually present at the scene.

The arguments of Mr. Wickham and Mr. Randolph completed for the time being the presentation of the defense’s side of the case. It now came the turn of the prosecution. But Mr. Hay pleaded for time. He called Judge Marshall’s attention to the fact that it was then Friday and expressed the hope that further discussion of the motion made by the defense could be postponed until Monday. That, he said, would give the prosecution time to reflect on the matter.

Mr. Wickham, Mr. Martin and Mr. Botts at once joined forces in protesting so long a postponement. But Mr. Hay and Mr. Wirt held out stoutly for a delay. An argument, they said, which had occupied two whole days in the delivery before the Court must have required considerable labor and reflection to arrange and digest. It was, they contended, unreasonable therefore to suppose that such an elaborate argument could be fully comprehended and an answer prepared in a single day.

Mr. Wirt observed that five or six gentlemen of great professional experience were united in the defense. He suggested that the motion might be regarded as a mere _ruse de guerre_ which they have sprung on counsel for the United States as from an ambuscade. More vital still, he reminded that if the motion were to succeed there would be an end of the case.

Judge Marshall, impressed by the arguments of counsel for the prosecution, removed any possible charge of favoritism to the defense on such an important issue by granting Mr. Hay’s request. Argument was forthwith postponed until the following Monday.

Nevertheless the Court did meet briefly on Saturday. It was for the purpose of arraigning Mr. Blennerhassett, who up until now had been present at the sessions in a somewhat anomalous capacity. So he was asked to stand while the indictment for treason was read to him. Here Mr. Botts interrupted the proceedings to call attention to the fact that there was a misnomer in the indictment and he had not had a chance to consult with his associates on the subject. He asked that the arraignment therefore be postponed. The request was granted by the ever obliging Chief Justice.

The two attorneys for the defense had made it emphatic in their arguments that the fundamental issue was whether treason as strictly defined in the Constitution was to prevail, or whether the broader and vaguer principle of constructive treason was to be admitted. If the definition of treason as laid down in the Constitution were followed to the letter the chances were good that Aaron Burr would go free.

But had not the President of the United States openly declared him guilty? Did not half the people in the United States believe him so, condemning him on the sensational evidence that had been spread by the public press? Was the evidence of General Eaton and Commodore Truxtun and of the lesser witnesses to be dismissed? Mr. Hay had alluded to common sense. Mr. Randolph had sneered. But the prosecution had not yet been heard.

_Chapter_ XVI

On the day following the postponement of his arraignment Harman Blennerhassett received an important visitor in his quarters in the penitentiary. He was William Duane, formerly a partner of Benjamin Franklin and Edward Bache in the publication of the _Aurora_. Duane was now the fiery editor of that newspaper which he had made into an organ of the Jeffersonian administration.

Duane expressed great sympathy for Blennerhassett. He told him his friends were making a scapegoat of him. Then, according to Blennerhassett, Duane tried to lure him into a confession of having written certain papers then in the hands of the prosecution. But the chief purpose of his visit was to try to persuade Blennerhassett to betray Burr.

This Blennerhassett steadfastly refused to do. And that was strange since he was himself convinced that, as Duane charged, he had been made a scapegoat. Less than a week after Duane’s visit he posted in his diary: “You were right, therefore, honest Hay, on observing the other day to Woodbridge while expressing your concern for my situation ‘that I must now think Burr has duped me,’ but you were wrong in supposing I am indebted to you for that discovery; I am possessed of it these nine months.”

Burr, who had his informants everywhere, was immediately apprised of Duane’s visit and lost no time getting word to Blennerhassett to be on his guard against spies who came to him under the mask of friendship. This precaution was unnecessary. Whatever Blennerhassett may have confided in his diary he was always completely disarmed when he came into the presence of Burr, and even when they were apart he seemed still to feel Burr’s influence.

Blennerhassett’s determination not to turn state’s evidence against the man who had duped him after pretending to be his friend has been attributed to the mildness of his temper or lack of courage. Perhaps each was a factor. However, Blennerhassett was not a bright man. His romance with his niece is evidence of an impetuosity that led him to act without counting the cost. From the time of their first meeting Burr had courted him assiduously, protesting that his vegetating on the island was a fraud on society and holding out brilliant prospects. Blennerhassett would have been easy prey for an even less skillful flatterer. What chance did he have with a man who had duped some of the best minds in the country and once through oratory alone had provoked the Senate of the United States to adoration and tears?

When Court convened on Monday morning MacRae opened for the prosecution and proceeded to live up to his reputation for wielding a meat axe. He was not the least restrained by the consciousness that his remarks were being made in the presence of, and only a few feet away from, Aaron Burr.

The prisoner, he charged, had with unexampled dexterity contrived from the very beginning to quit his situation as the accused. Instead of Aaron Burr defending himself he was found taking the high ground of public accuser and assailing others.

Mr. MacRae charged that Wilkinson, whom he called “the savior of his country,” and who had prevented the execution of this detestable plot, had incurred the hatred and resentment of the prisoner and his associates in proportion as he deserved well of his fellow citizens. Let others question General Wilkinson’s integrity. Mr. MacRae would not do so, at least not in open court. In MacRae’s language Wilkinson was “the patriotic and meritorious officer (like those who opposed and overthrew Cataline, the Roman conspirator) who defeated this daring scheme against American liberty.” He would not be forgiven by the conspirators.

“If he [Burr] be innocent and pure as the child unborn,” sneered Mr. MacRae, “if he knew nothing of the transaction, why is it that this motion is made to exclude the evidence?”

What though the prisoner was not on Blennerhassett Island when the overt act was committed? The speaker contended that nevertheless he was guilty if anybody was guilty.

“Is there,” he asked, “any human being who having heard the evidence of General Eaton ... the evidence of the Messrs. Morgan and the evidence of the witnesses who speak of the overt act on the island, especially Jacob Allbright and Peter Taylor, who can doubt his guilt?”

Mr. MacRae professed he could not see why it should be necessary for Colonel Burr to be on the island if he enlisted the men, and sent them to the place, and acted himself in another place. Nor would he bring up the cases of Lady Lisle and Elizabeth Gaunt who had been mentioned by Mr. Wickham. Why should he? These women were accessories after the fact. But Mr. Burr had never been regarded as an accessory. He was the first mover of the plot; he planned it; he matured it; he contrived the doing of the overt acts which others did. Burr, charged MacRae, was the alpha and omega of this treasonable scheme, the very body and soul, the very life of this treason!

So, observed Mr. MacRae, Mr. Wickham had said the prosecution must prove that the accused was personally present. “No, Sir,” he objected, “it is necessary to prove that some act laid has been committed.... If the law pronounce that he is liable for the acts of his agents, and if the fact be that his agents by his commands and at his request committed the act, where is the necessity of producing proof that he was on the spot himself?”

Counsel for defense had complained of construction. “Our construction we think correct,” said Mr. MacRae, “because it is calculated to secure the rights of the citizen and to render the government permanent; whereas if the construction of the gentlemen on the other side be correct, the government cannot be permanent. Let them have the power of ubiquity. The conspirators will always contrive to avail themselves of this plea that they were not present.”

Mr. MacRae turned to the Old Testament to support his argument. He used the story of David and Uriah to illustrate it, confident that it was well known to all the members of the jury in an age when everybody read the Bible. David, he recalled, placed Uriah in the front of the battle in opposition to a very powerful opponent in order that he might be slain and that David might afterwards take his wife. If people were asked who killed Uriah, David or the antagonist by whose sword Uriah fell, the answer of all would be that--having placed him in the front of the battle in a place of the greatest danger, in immediate opposition to a man of great strength and power, with the intention that he should be killed--David killed him.

The speaker now applied the principle to the case before the court: “We suppose the prisoner, by himself and agents, to have been acting at or about the same time at Beaver, Kentucky, and Blennerhassett’s Island. We suppose that the prisoner enlisted men before he came to Beaver and at it. We suppose that afterwards his men proceeded by his orders to Blennerhassett’s Island and were there increasing their numbers by more enlistments and providing the means of transporting his troops down the river towards the scene of his expedition, while he was himself enlisting more men in Kentucky and making arrangements preparatory to his meeting and assuming the command of the whole at the mouth of the Cumberland; and that in fact, pursuant to this plan of operations, he did meet and take the command of all the conspirators at the latter place.”

Were there precedents in the law to sustain this argument? Mr. MacRae cited the case mentioned in Hale’s _Pleas of the Crown_ of the Lord Dacre and divers others who came to steal deer in the park of one Pelham. Rayden, one of the company, killed the keeper of the park, the Lord Dacre and the rest of the company being in other parts of the park. Yet it was held that it was murder in them all and they died for it. And, said Mr. MacRae, there was American authority, too. He cited Dallas’s _Reports_ and the case of the United States against Mitchell in the Whiskey Rebellion in which Judge Patterson’s charge to the jury showed that a man did not have to be present at the overt act.

Mr. MacRae then took his fling at the Chief Justice’s opinion in the Bollman and Swartwout case. So the defense considered that it was not a regular, solemn opinion? That it was not delivered on a point depending before the judges, but extrajudicial and therefore not authority? Why, declared Mr. MacRae, the language was so explicit and pointed that it could not possibly be misunderstood!

“I consider it as completely proved by the opinion,” he continued, “... that if an unlawful assemblage of men meet together for a treasonable purpose, it is not necessary that arms should be in the hands of those who are concerned, in order to make them traitors. I have imagined that their meeting together in this manner (in military array) would be sufficient to show that their purpose was treasonable.” The speaker considered also that the reason of East on the subject was conclusive where, among other things, he held that “any assembly of persons met for a treasonable purpose, armed and arrayed in a warlike manner, is _bellum levatum_, though not _percussum_!”

On that note MacRae ended his argument. “_Bellum levatum_, though not _percussum_”--that theme with variations was to get exhaustive treatment from the next speaker. But the court had heard enough for one day.

When, on the morning of the 25th, the bailiff called for order, the dashing 34-year-old William Wirt entered the lists as champion for the prosecution. Critics of the Administration complained bitterly of President Jefferson using the public money to employ private counsel when there were official prosecutors on the payroll for the purpose of performing that particular task. But the President felt he could not leave so great a responsibility to the plodding Hay, especially after the defense had assembled such a dazzling array of counsel. On this hot August morning the time had come for Wirt to prove to the public that the fee he would receive from the Government was well earned.

Wirt was faced with a dilemma. At this phase of his career his chief asset was a natural flow of words that was surpassed only by that of James Wilkinson. While eloquence might be counted on to sway a jury its effect on the Chief Justice was highly problematical. Judge Marshall’s style was logical and free from embellishments. He also had a keen sense of the ridiculous. Thus, as Wirt warmed to his task and instinctively soared to rhetorical heights, he found himself being rudely brought down to earth out of anxiety over what mischievous thoughts lay behind the solemn countenance of the Chief Justice.

The speaker commenced his dissertation by undertaking to clear himself of personal malice toward the accused. The humanity and justice of the nation, he observed, would revolt at the idea of a prosecution pushed on against a life which stood protected by the laws.

“I would not,” he declared, “plant a thorn, to rankle for life in my heart by opening my lips in support of a prosecution which I felt and believed to be unjust.”

Mr. Wirt noted that the gentlemen of the defense appeared to feel a very extraordinary and unreasonable degree of sensibility on this occasion. They seemed to forget the nature of the charge and that he and his colleagues were the prosecutors. But the lawyers of the prosecution did not stand there to pronounce a panegyric on the prisoner. They were there to urge on him the crime of treason against his country!

The lawyers of the prosecution, Mr. Wirt warned, were not going to mince matters. When they spoke of treason they must call it treason. When they spoke of a traitor they must call him a traitor. When they spoke of a plot to dismember the Union, to undermine the liberties of a great portion of the people of this country and subject them to a usurper and a despot, they were obliged to use the terms that conveyed those ideas.

Why, then, were the gentlemen of the defense so sensitive? Why on those occasions so necessary, so unavoidable, did they shrink back with so much agony of nerve, as if instead of being in a hall of justice they were in a drawing room with Colonel Burr and were barbarously violating towards him every principle of decorum and humanity?

The speaker then proceeded to deal facetiously with Wickham’s erudition. The latter, he reminded, had invited them to consider the subject abstractly. But would there not be danger in that? While they were mooting points, pursuing ingenious hypotheses, chasing elementary principles over the wide extended plains and Alpine heights of abstracted law, was there not danger that they would lose sight of the great question before the Court?

The motion before the Court, Mr. Wirt agreed, was a bold and original stroke in the noble science of defense. It marked the genius and hand of a master. For, said he, it gave the prisoner every possible advantage. Yet at the same time it cut off from the prosecution all the evidence which went to connect the prisoner with the assemblage on the island, to explain the destination and objects of the assemblage, and to stamp beyond controversy the character of treason upon it.

If, asked Mr. Wirt, the views of the prisoner were, as they had been so often represented by one of his counsel, highly honorable to himself and glorious to his country, why not permit the evidence to disclose those views?

“No, Sir,” he protested, “it is not squeamish modesty. It is no fastidious delicacy that prompts these repeated efforts to keep back the evidence. It is apprehension! It is alarm! It is fear, or rather the certainty, that the evidence whenever it shall come forward will fix the charge.”

And now Mr. Wirt, with the instinct of a good showman, was reminded that he was speaking to an audience of men and must season his discourse with a little spice. “I will not,” he asserted, “follow the example which he [Mr. Wickham] has set me on a very recent occasion.... I will not, like him, in reply to an argument as naked as a sleeping Venus--but certainly not half so beautiful--complain of the painful necessity I am under, in the weakness and decrepitude of logical vigor, of lifting first this flounce and then that furbelow, before I can reach the wished for point of attack.” Mr. Wirt’s metaphor must at least have provoked smiles from the audience, if not downright laughter.

On the contrary, said Mr. Wirt, he would endeavor to meet the gentleman’s propositions in their full force and to answer them fairly. He would not, as Mr. Wickham had done, as he was advancing toward them with his mind’s eye, measure the height, breadth and power of the proposition; if he found it beyond his strength, halve it; if it still was beyond his strength, quarter it; if still necessary, subdivide it into eighths; and when, by this process, he had reduced it to the proper standard, take one of those sections and toss it with an air of elephantine strength and superiority.

Mr. Wirt would not, in commenting on the gentleman’s authorities, thank the gentleman with sarcastic politeness for introducing them, declare that they conclude directly against him, read just so much of the authority as serves the purpose of that declaration, omitting that which contained the true point of the case which was made against him. Nor, if forced by a direct call to read that part also, would he content himself with running over it as rapidly and inarticulately as he could, throw down the book with a theatrical air and exclaim “Just as I said,” when he knew it was just as he had not said.

Having thus performed this little exercise in satire at Mr. Wickham’s expense, Mr. Wirt got down to the case in point. He noted that Mr. Wickham had read the Constitutional definition of treason and given the rule by which it was to be interpreted. After he had done that it would have been natural for him to proceed directly to apply that rule to the definition and give the result.

But no. Even while they had their eyes on the gentleman he vanished like a spirit from American ground and was seen no more until he turned up in England, “resurging by a kind of intellectual magic in the middle of the 16th century, complaining most dolefully of my Lord Coke’s bowels.”