Chapter IX: Part 9

“Before we follow him in this excursion,” proposed the speaker, “it may be well to inquire what it was that induced him to leave the regular track of his argument. I will tell you what it was. It was, Sir, the decision of the Supreme Court in the case of Bollman and Swartwout.... Sir, if the gentleman had believed this decision to be favorable to him, we should have heard of it in the beginning of his argument.”

And so the prosecution was back again, lunging at the chink in the defense’s armor which the Chief Justice, in one rare moment of careless workmanship, had left there.

What said the Supreme Court? Mr. Wirt read the offending passage: “... if a body of men be assembled, for the purpose of affecting by force a treasonable purpose, 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.”

The constant reiteration of his error must have brought a blush to the tanned cheek of the Chief Justice. Or had constant repetition by now rendered him immune to embarrassment?

Counsel for the defense, said Mr. Wirt, had taken the bold and difficult ground that the passage which he had read was extrajudicial, a mere _obiter dictum_. They were, he insisted, mistaken. It was a direct adjudication of a point immediately before the Court.

The speaker referred to the fact that Judge Marshall had been asked by the defense to disregard the Bollman-Swartwout decision. But, he asked, how could an inferior court control the decision of the superior court? If the Chief Justice, sitting as a circuit court, had the right to disregard the rule decided by the Supreme Court and to adopt a different rule, then every other inferior court had a right to do the same. Then there would be as many various rules as to treason as there were courts. The result, Mr. Wirt insisted, might be--and certainly would be--that what would be treason in one circuit would not be treason in another, and a man might be hanged in Pennsylvania for an act against the United States, of which he would be perfectly innocent in Virginia.

And, continued Mr. Wirt, if treason requires the actual presence at the scene of the assemblage, how easy it would be for the principal traitor to avoid this guilt and escape punishment forever. He might go into distant states and from one state to another. He might secretly wander, like a demon of darkness, from one end of the continent to the other. He might enter into the confidence of the simple and unsuspecting. He might pour his poison into the minds of those who were before innocent. He might seduce them into love of his person, offer them advantages, pretend that his measures were honorable and beneficial, connect them in his plot and attach them to his glory.

Mr. Wirt’s hypothetical case was beginning to show a striking resemblance to what Aaron Burr was charged with having done. And he was not yet through. This imaginary man might prepare the whole mechanism of the stupendous and destructive engine and put it in motion. Let the rest be done by his agents. He might then go a hundred miles from the scene of action. Let him but keep himself from the scene of the assemblage and the immediate site of battle and he would be innocent in law, while those whom he had deluded would suffer the death of traitors!

“Who,” he asked, “is the most guilty of treason? The poor, weak, deluded instruments, or the artful and ambitious man who corrupted and misled them? There is no comparison between his guilt and theirs. And yet you secure impunity to him, while they are to suffer death! Is this according to the rule of reason?” Here Mr. Wirt launched forth on a lengthy dissertation on the subject of principals and accessories before and after the fact that did credit to his familiarity with legal precepts and the dicta of the authorities both in this country and in England.

And now the speaker poised himself for the supreme effort, while a hush of anticipation fell over the assemblage.

“Who is Blennerhassett?” he inquired in his melodious voice. “A native of Ireland, a man of letters, who fled from the storms of his own country to find quiet in ours. His history shows that war is not the natural element of his mind. If it had been, he never would have exchanged Ireland for America. So far is an army from furnishing the society natural and proper to Mr. Blennerhassett’s character that, on his arrival in America, he retired even from the population of the Atlantic States and sought quiet and solitude in the bosom of our western forests.”

Let the Chief Justice be secretly amused. Mr. Wirt was not going to deny himself the superb opportunity of holding his audience spellbound with his oratorical gifts. “But he carried with him taste and science and wealth; and lo, the desert smiled!

“Possessing himself of a beautiful island in the Ohio, he rears upon it a palace and decorates it with every romantic embellishment of fancy. A shrubbery that Shenstone might have envied, blooms around him! An extensive library spreads its treasures before him. A philosophical apparatus offers to him all the secrets and mysteries of nature. Peace, tranquillity and innocence shed their mingled delights around him.

“And to crown the enchantment of the scene, a wife, who is said to be lovely even beyond her sex and graced with every accomplishment that can render it irresistible, had blessed him with her love and made him the father of several children. The evidence would convince you that this is but a faint picture of the real life.”

The speaker’s countenance changed from joy to distress and his voice assumed a solemn tone. “In the midst of all this peace, this innocent simplicity and this tranquillity; this feast of the mind, this pure banquet of the heart, the destroyer comes. He comes to change this paradise into a hell. Yet the flowers do not wither at his approach. No monitory shuddering through the bosom of their unfortunate possessor warns him of the ruin that is coming upon him.

“A stranger presents himself. Introduced to their civilities by the high rank which he had lately held in this country, he soon finds his way to their hearts, by the dignity and elegance of his demeanor, the light and beauty of his conversation and the seductive and fascinating power of his address. The conquest was not difficult. Innocence is ever simple and credulous. Conscious of no design itself, it suspects none in others. It wears no guard before its breast. Every door and portal and avenue of the heart is thrown open, and all who choose it enter.

“Such was the state of Eden when the serpent entered its bowers. The prisoner, in a more engaging form, winding himself into the open and unpracticed heart of the unfortunate Blennerhassett, found but little difficulty in changing the native character of that heart and the objects of its affection. By degrees he infuses into it the poison of his own ambition. He breathes into it the fire of his own courage; a daring and desperate thirst for glory; an ardor panting for great enterprises, for all the storm and bustle and hurricane of life.

“In a short time the whole man is changed, and every object of his former delight is relinquished. No more he enjoys the tranquil scene. It has become flat and insipid to his taste. His books are abandoned. His retort and crucible are thrown aside. His shrubbery blooms and breathes its fragrance upon the air in vain; he likes it not. His ear no longer drinks in the rich melody of music; it longs for the trumpet’s clangor and the cannon’s roar. Even the prattle of babes, once so sweet, no longer affects him; and the angel smile of his wife which hitherto touched his bosom with ecstasy so unspeakable, is now unseen and unfelt.

“Greater objects have taken possession of his soul. His imagination has been dazzled by visions of diadems, of stars and garters and titles of nobility. He has been taught to burn with restless emulation at the names of great heroes and conquerors. His enchanted island is destined soon to relapse into a wilderness; and in a few months we find the beautiful and tender partner of his bosom, whom he lately permitted not the winds of summer ‘to visit too roughly,’ we find her shivering at midnight, on the winter banks of the Ohio and mingling her tears with the torrents that froze as they fell.

“Yet this unfortunate man, thus deluded from his interest and his happiness, thus seduced from the paths of innocence and peace; thus confounded in the toils that were deliberately spread for him, and overwhelmed by the mastering spirit and genius of another--this man, thus ruined and undone and made to play a subordinate part in this grand drama of guilt and treason--this man is to be called the principal offender, while he, by whom he was plunged into misery, is comparatively innocent, a mere accessory. Is this reason? Is it law? Is it humanity? Sir, neither the human heart nor the human understanding will bear a perversion so monstrous and so absurd! So shocking to the soul! So revolting to the reason!”

Thus ended Wirt’s classic accusation of Burr. The time remaining to the speaker was devoted to a prosaic discussion of _bellum levatum_ as distinguished from _bellum percussum_. Gentlemen on the other side, said Mr. Wirt, asked for battles, bloody battles, hard knocks, the noise of cannon. But there was none. There did not have to be. The Constitution said “levying war,” not “making war.” He had recourse to his dictionary to show that the word “levy” means “to raise.” So there needed to be no force. The word force was used figuratively merely to signify the assembled body and not any deed of violence.

Nevertheless, if the defense insisted upon force, did not the assemblage on Blennerhassett Island exert a species of potential force on the surrounding country? Did not Comfort Tyler and his party put that country into a state of consternation? What urged the state government of Ohio to send a body of men to take that party and seize its boats? What induced the State Legislature to deliberate with closed doors? What caused the militia of Wood County, Virginia, to be put in motion and marched to the island? The speaker traced the wave of alarm as it moved from the island southward all the way to New Orleans.

The day was almost spent when, with a sigh of weariness, Mr. Wirt announced that he had finished what he had to say. He begged pardon for consuming the time of the Court so long. He thanked it for its patience and polite attention. He pleaded that he was much too exhausted to recapitulate his argument. But to such a Court as that of the Chief Justice’s he was sure that was unnecessary.

After his masterly effort Mr. Wirt would not have been human had he not felt a glow of satisfaction over his performance. Even those on the other side must have conceded that he had more than earned his fee. All that came after the portrayal of the relationship between Blennerhassett and Burr was anticlimax. That passage, duly recorded by Mr. Robertson, found its way into books of elocution and became one of the most popular pieces of literature to memorize and declaim. The Chief Justice was kind enough to remark that he had been greatly impressed by the speaker’s eloquence. What effect it had on the members of the jury for whose consumption it was chiefly intended only they could say, and they left behind them no record of their reactions.

There was also the effect on the prisoner whose misdeeds had been so vividly described. The Colonel sat through it all calmly, but with his alert mind he took in every word of it. It is said that in later years he entertained himself and his friends by reciting the more florid passages and that his performance seldom failed to be rewarded with peals of derisive laughter.

_Chapter_ XVII

Wirt’s argument had consumed the better part of the day, but there still was a little time left before the regular hour for adjournment. Two of the lawyers for the prosecution having held the floor in succession it was again the turn of the defense.

Of Colonel Burr’s lawyers none was better equipped by temperament to counterbalance William Wirt than was Benjamin Botts. He, too, could boast the vigor and abandon of youth. In fact he was the youngest of all the array of legal talent which had been attracted to the case. He was distinguished for his wit and he was a master of ridicule, for which Mr. Wirt’s florid oratory made an excellent target. As Wirt had set out after Wickham in his opening remarks, so young Botts turned his guns on Wirt.

“I cannot promise you, Sir, a speech manufactured out of tropes and figures,” he began with mock apology. Then, alluding to Wirt’s reference to “an argument as naked as a sleeping Venus,” he continued: “Instead of the introduction of a sleeping Venus, with all the luxury of voluptuous and wanton nakedness to charm the reason through the refined medium of sensuality, and to convince us that the law of treason is with the Prosecution by leading our imaginations to the fascinating richness and symmetry of a heaving bosom and luscious waist, I am compelled to plod heavily and meekly on through the dull doctrines of Hale and Foster.” Mr. Botts, too, was not without skill in playing up to the gross humor of an all-male audience.

“So far though from reproving the gentleman’s excitement of the boiling blood of such of us as are in the heyday of youth, without the previous caution of clearing the hall of those whose once panting desires have been chilled by age, and upon whom the forced ecstasy sat unnaturally and uneasy, I only lament my utter incapacity to elicit topics of legal science by an imitation of so novel and tempting an example. Nothing but the impossibility of success would prevent me also from grasping at the fame and glory on this grave occasion, and at this time of pleasure, of enriching the leering lasciviousness of a like bewildering thought to transport anew the old and the young.”

In such manner Mr. Botts soon put the assemblage in good humor. Even the Chief Justice, who enjoyed a joke as much as the next man, must have joined in the fun. Having thus ingratiated himself with his audience by this gay introduction he proceeded to present his serious argument. His first proposition he told them would be to endeavor to establish the fact in support of the motion that the acts proved to have taken place on Blennerhassett Island were not in themselves acts of war and that no intention could make them acts of war.

What had actually happened? According to Mr. Botts about thirty men had landed on the island and remained there for two or three days. It is true, they had some arms and ammunition. They guarded their property at the boats. They prepared provisions to take with them down the river. At a place contiguous to the island it was admitted they had killed some squirrels. As notable a circumstance as any in this overt act was that they had had what one of the witnesses called “a watchword.” All but Blennerhassett and Tyler were confessedly ignorant of the plan. They got alarmed on hearing the report of a mob and fled secretly in the night after Comfort Tyler had declared his purpose not to resist constituted authorities.

Now, said Mr. Botts, the proposition of the opposing side was that these were acts of war, that they were intended first against the people of Wood County, Virginia, in which the island was situated, and then against New Orleans.

He would suppose first that the acts were against Wood County. Very well, then, the boats, the oars, the provisions for a long journey, the after-descent of the river were overt acts of levying war against Wood County.

“But, Sir, the party was armed!” he exclaimed, imitating the manner of the prosecution. Why? Mr. Botts contended that it showed they were expecting the people of Wood County would attack them. In other words Mr. Botts apprehended that the people of Wood County meditated war on the people of the island, not that the islanders meditated war against the people of Wood County.

Then, continued Mr. Botts, it was found that the people of the island had fled silently in the night from those of Wood County. And because they fled, it seems they were guilty of acts of war!

On the other hand, said Mr. Botts, pursuing his argument, “if the war was not against Wood County it was against New Orleans. And New Orleans was 2200 miles away!”

In the same playful mood, Mr. Botts suggested that the defendant might claim that these persons had no arms, or if they had guns that they were not long enough to shoot all the way from the island to New Orleans. He presumed that the reply the prosecution would make to that was that no arms were necessary, that they might make war with their fingers. Or the defendant might urge that persons in this country have a right to carry arms, that it is also conformable to usage for people going down the river to kill ducks and other such game.

“The prosecutor,” Mr. Botts presumed, “would answer that arms are not necessary; that they had three or four guns, a little powder and shot even to kill fowls and ten or twelve boats; that it was a most bloody war indeed; that without arms it would be war, but with these arms it was a most dangerous war against the United States!”

If this was making war against the United States, declared Mr. Botts, then “If I run away and hide to avoid a beating, I am guilty and may be convicted of assault and battery!” Here Mr. Botts suggested the propriety of adjourning.

When Court met next morning and Mr. Botts resumed his argument he was in the same facetious mood. Once more he went back to the charge of levying war and recalled the failure of the grand juries in Mississippi and Kentucky to indict.

“The Mississippi Territory and Kentucky, as we are informed, were the seat of war,” he observed. “But the simpletons of that State and Territory hunted but could not find the war. They were so stupid as not to perceive in a collection of men without arms, without any possible means of annoyance, without any hostile disposition and without the possibility of getting away their women and families, anything criminal, much less any aptitude to overturn two mighty empires.

“It remained for us, the proud members of the Virginia bar, to come out and astonish the world with the profundity of our learning in matters of war. They have ascertained that there was a terrible war. I ask you what manner of war was it? We have had a much more serious war here than on the island. We have had here a carnage of breaths, sour looks and hard words and the roaring of vocal cannon. We have had a battle with the laws and the Constitution fought courageously and furiously by our enemy.

“Is it not a mockery to speak of the war on Blennerhassett’s Island? Shall we not be the sport of Europe and the world by such a discussion?”

In spite of the nation’s independence, which it now had enjoyed for a matter of more than thirty years, the Virginia bar still did obeisance to that of England. Though Burke had died in 1797 and Charles James Fox and the younger Pitt had gone to join their fathers within the year, counsel in the Burr case transferred their veneration to their successors in Westminster. They seemed to have imagined fatuously that this spirit of camaraderie was reciprocated and that the great men of England had temporarily put aside the affairs of empire to follow every move being made by opposing counsel in the hall of the Virginia House of Delegates in Richmond.

Now, continued Mr. Botts, Mr. Hay had said that constructive treason in this country would not be dangerous. Mr. Botts would suppose an imaginary case. He would suppose there had been well-grounded apprehension of an approaching war with a neighboring and powerful nation. He would suppose that the United States had a feeble army in the neighborhood of the boundary line between the two countries, and that the American general had orders to fall back. Mr. Botts, be it noted, was as good at making hypothetical cases for the defense as was Mr. Wirt for the prosecution.

He would suppose that the populous rich city of New Orleans was in danger of invasion. He would suppose that a hero distinguished for military science and valor and as patriotic as he was ambitious of honorable fame--but whose good name was blighted and blasted by the malice of his countrymen--should have seen the dangers hanging over his country: New Orleans threatened with invasion and conquest by a Spanish force, the citizens there in danger of murder and captivity, their wives and daughters ready to be a prey to Spanish lust, and all else in that favored country exposed to desolation.

He would suppose that the hero knew that a band of faithful patriots could be collected immediately around his standard. He would suppose that with this band of patriots the hero should at this fortunate and critical moment have rescued the country, the army, the people, by a reasonable relief to the decrepit and half baffled forces of the United States. He would suppose that in the same magnanimous spirit the hero should after this have gone on his enterprise to establish the independence of the Mexicans and give liberty to millions now groaning under bondage.

Suppose he had done all this: he would have acquired immortal glory and be renowned in future ages as the deliverer of his country, worshiped as its idol and called its savior as Washington was.

Thus Mr. Botts artfully contrived to present the character of Aaron Burr as his defenders chose to imagine it. The defense scored the prosecution for trying to introduce constructive treason into the United States. It did not object to introducing constructive heroism, provided the hero was Colonel Burr. The Colonel laughed at William Wirt’s extravagant language. Is it not possible that he stifled a cynical smile as he heard himself thus being glorified by young Botts?

Mr. Botts’s supposing ended, he next described in heart-rending language the manner in which the well-meaning and patriotic Colonel had been basely betrayed and thwarted. In what some might have considered not too good taste he recalled that Christ himself had been abused, mocked, and spit upon. Why then should not a mere mortal man be in like manner abused?

The young champion next raised his lance against the President of the United States. He charged that Mr. Jefferson’s interference with the prosecution of the case was improper, illegal, and unconstitutional. He had no doubt, he said, that the President had acted from good intentions, without sufficiently reflecting on the subject, and that he was inadvertently following one of the very worst English examples in the most arbitrary reigns. He wished Mr. Jefferson could be at his side now to hear what could be said on the subject. Young Mr. Botts was sufficiently sure of his powers of persuasion to believe that under those circumstances Mr. Jefferson would be convinced that he had done wrong.

Then Mr. Botts came to his concluding peroration. “We are told,” he said, “that the virtue of the people will do everything; that the voice of the people must be heard and must decide where they are sovereign; that the voice of the people is the voice of God; and that a majority of the people must always do right....

“I hope the gentlemen ... will not refer the fate of individuals accused to the sudden and violent impulse of their feelings and passions.... There are cases where individuals have been sacrificed by the voice of the people. Socrates was made to drink the hemlock, and Aristides was banished by the people.... Admiral Byng was made to die for the same cause. Jefferson was run down in the year 1780 by the voice of the people.” Mr. Botts’s reference here was to the unpopularity of Mr. Jefferson during the Revolution when he was Governor of Virginia and the state was invaded by the British and complaints of Mr. Jefferson’s ineffectiveness in meeting the crisis raised murmurs for his impeachment.

After that Mr. Botts was back again appealing to Holy Writ to drive home his point: “Reformation and Christianity itself prove the general errors subject to pervade the people. Jesus Christ himself was crucified by the people.”

On this sacred note Mr. Botts closed his discourse. He had proved himself to be as entertaining as any of his elder brethren of the bar.

The industrious Mr. Robertson rendered yeoman service in recording the lengthy and often tedious proceedings. Even he was beginning to tire. He concluded it was not necessary to set down all that was said. Instead he contented himself with making the entry, “here some facetious and pleasant remarks passed between Mr. Botts and Mr. MacRae; which afforded amusement for the moment, but are omitted as irrelevant to the report.” Irrelevant? Who knows but that if Mr. Robertson had recorded the facetious and pleasant remarks that Mr. MacRae made in his exchange with Mr. Botts, Mr. MacRae might have been spared the ignominy of going down to posterity as a sour Scotsman.

Soon after there appeared the entry: “Here a desultory conversation ensued between Mr. Botts and Mr. Wirt in which some warm and animated observations were made respecting the evidence, and Mr. Wirt’s comments thereon.” Had Mr. Botts’s ridicule got under Mr. Wirt’s skin? At this point the Chief Justice poured oil on the troubled waters by remarking that the evidence was such that different gentlemen might draw different inferences from it.

After Botts came the District Attorney’s turn again. “I cannot,” he confessed with his customary modesty, “instruct you by my learning, amuse you by my wit, make you laugh by my drollery nor delight you with my eloquence. All I can do is to express to you in plain language the convictions perhaps of a mistaken judgment.” Here was no mock humility, but the sincere outpouring of a spirit oppressed by the knowledge that among his colleagues of the Richmond bar he was labeled as a mediocrity. Hay would have been even duller of wit than public opinion made him out to be if he had not noted the special consideration assigned to such of his contemporaries as Wickham, Botts, and Wirt. He could have consoled himself with the reflection that in such an assemblage humility was a rare and welcome virtue.

Mr. Hay had no sooner fairly begun on his discourse than he made an allusion to Justice Samuel Chase and his conduct in the Fries case in which he had strained the law to convict for the Government. The censure the judge brought on himself, observed Mr. Hay, was not on account of his opinions but for his arbitrary and irregular conduct at the trial. Chase, he reminded, attempted to wrest the decision from the jury and prejudge the case before hearing all the evidence in it. It was, said Mr. Hay, the identical thing this Court was being called on to do by the gentlemen of the defense. At this the gentlemen of the defense pricked up their ears. Mr. Hay was to hear from them later.

The remark about Justice Chase was preliminary to a dissertation on the institution of trial by jury. “If,” Hay averred, “it ever shall be determined by this Court that it has it in its power to take the decision of facts from the jury, the trial by jury, one of the greatest bulwarks of civil liberty, may be struck down and destroyed.”

The great question at issue in this case, he said, was compounded of law and of fact, of which latter the jury were the judges. Therefore every allegation which related to the indictment, all the evidence relating to and bearing on the issue, ought to be brought forward and heard by the jury. The prosecution held that Colonel Burr was guilty of levying war against the United States. Colonel Burr said he was not. The evidence the defense sought to exclude bore directly on the point at issue. Mr. Hay expressed himself as positive the framers of the Constitution never intended to take the decision of the general issue in a criminal case away from the consideration of the jury and give it to the judge.

The speaker paused for an impressive moment and then, selecting his words with care, addressed the bench: “I consider this principle of the trial by jury, preserved in its uttermost purity and independence, as connected with the best principles of the human heart. It ought to be viewed and approached with the utmost reverence and caution; and when a judge is called to do what may lead him to encroach on this principle, he will advance with the utmost circumspection and awe. I will take the liberty to say that it will be far more safe and correct to remain a thousand miles on this side of the line which separates the rights of the Jury from those of the Court, than to go a hair’s breadth beyond it; and if he should encroach he ought for no human consideration to touch it. If ever he do, he undermines civil liberty.” That short dissertation on trial by jury must have made some of those present wonder if they had misjudged when they wrote George Hay off as a mediocrity.

The District Attorney returned to the old question of whether actual presence of the accused at the scene of the overt act was necessary to sustain a charge of treason. Suppose, he said, Colonel Burr had never been on the spot where the overt act was committed. Suppose he knew his men were there and about to be attacked. Suppose he sent more men there to help them, along with arms, ammunition, and provisions and all other things necessary for their defense. Suppose an attack was made and repelled and thousands fell in the battle. Would it be contended by the gentlemen of the defense that Aaron Burr, not having been personally present when this overt act of his procurement was committed, was not a principal but an accessory? That his soldiers were principals in treason, but he was not? To prove the fallacy Mr. Hay proposed that they look at the result. He is innocent and safe. They are guilty and punished.

“Is it possible,” he asked, “that the human mind can be so perplexed by learning and so misled by ingenuity, so totally bereaved of all its powers, as to adopt a conclusion like this?”

Mr. Hay closed his argument by reverting to Mr. Wickham’s expressed fear that the doctrine the prosecution asked the Court to sanction would be fatal to the liberty and happiness of the people of the United States. He pictured Mr. Wickham trembling for his country, himself, and his posterity lest the prosecution succeed.

“I too am a citizen of this country,” he declared, “and the father of children for whose happiness and welfare I feel a solicitude as lively and affectionate as any parent can feel. To the true happiness of my country I hope I know that I am sincerely and ardently attached. But I see no danger. I apprehend none for myself or my posterity. I am perfectly willing to risk my own life, liberty and happiness, and those of my posterity on the propriety of the principles which we recommend. Let them avoid traitorous conspiracies and designs fatal to the liberty and happiness of their fellow citizens; let them avoid traitorous assemblies, overt acts of war, and they will be safe.”

Thus concluded Mr. Hay. Next on the list of pleaders was Luther Martin, but he sent word to the Court that he was not ready. So Mr. Charles Lee, of the defense, arose to fill the breech. It was one of the rare occasions when he was recorded as having spoken.

Counsel for the defense had been waiting impatiently for a chance to pounce on the District Attorney from the moment he brought up Justice Chase and the Fries case. Now Mr. Lee had that agreeable opportunity.

“The gentleman said in substance there was no difference between the opinion which we desire you to give and that for which Judge Chase was impeached,” charged Mr. Lee, addressing the Chief Justice. “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, a decision like that which has already produced the impeachment of another judge.”

Mr. Lee knew full well he was touching a tender spot. By thus accusing the District Attorney he was acting on the popular belief among Judge Marshall’s friends that the Chief Justice was himself as much on trial as was the prisoner at the bar. Mr. Hay was prompt to do what he could to counteract that impression.

“The cases are different,” he replied. “What I said was only said to put Mr. Botts right in his misrepresentation. It was innocently said and compatible with the highest respect for the Court, not with the design which the gentleman (I will not say candidly) insinuates.”

Here the Chief Justice intervened. “I did not consider you as making any personal allusion, but as merely referring to the law,” he assured Mr. Hay. Thus, with an exhibition of his customary common sense, Judge Marshall graciously accepted Mr. Hay’s explanation, whatever his innermost thoughts might have been.

Mr. Lee, however, persisted. “The gentleman plainly insinuated the possibility of danger to the Court from a favorable opinion to the prisoner,” he protested, “because he said that the opinion which we claimed for him was the same in substance as had occasioned the impeachment of one judge already. It certainly would not be unfair to infer that it was intended to show that the same cause might again produce the same effect.”

Colonel Burr’s urgent request that the trial be expedited seemed doomed to failure. Mr. Lee, having been less long-winded than his colleagues, completed his argument some time before the hour of adjournment. The proposal was made to send a messenger to summon Mr. Martin whose appearance was next on the agenda. But the lawyers of the defense who were present declined to do so, stating again that Mr. Martin was not yet ready. The Court therefore adjourned for the day.

It was not until Friday morning, August 28, that Mr. Martin at last made his entry and rose to address the Court. In speech and appearance he was coarse and crude. Toward his enemies he could be vindictive, as he already had shown in the previous proceedings of the trial. His emotions were as violently stirred in behalf of those he called his friends. On the other hand no one surpassed him in his knowledge of the law and in the application of that knowledge to whatever case he might be pleading.

At the moment Colonel Burr enjoyed his complete loyalty. And since his introduction to her a few weeks before he had developed a consuming admiration for Theodosia Alston. Now came the supreme opportunity to serve them both.

Mr. Martin opened his address with an expression of regret that the artifices and persecutions of his enemies had placed Colonel Burr in his present predicament. But, he continued: “I shall ever feel the sincerest gratitude to Heaven, that my life has been preserved to this time, and that I am enabled to appear before this Court in his defense.

“And if the efforts of these highly respectable and eminent gentlemen with whom I have the honor to be associated, united with my feeble aid, be successful in rescuing a gentleman for whom I with pleasure avow my friendship and esteem, from the fangs of his persecutors--if our joint efforts shall be successful in wiping away the tears of filial piety, in healing the deep wounds inflicted on the breast of the child, by the envenomed shafts of hatred and malice hurled at the heart of the father--if our efforts shall succeed in preserving youth, innocence, elegance and merit from despair, from distraction--it will be to me the greatest pleasure. What dear delight will my heart enjoy. How ineffable, how supreme will be my blessing.”

The solicitude of the elderly gentleman for the prisoner’s daughter was not lost on his audience. The old and kindly disposed no doubt heard them and were touched. The young and cynical were amused that the old man’s infatuation for the beautiful young matron was capable of producing such eloquence. It was one of the current jokes of the town.

However, pursued the speaker, private friendship for the accused and his connections was not his only inducement. He was as well thankful to Heaven that when a question as to the right construction of the principles of treason was to be decided--on which the happiness or misery of the present and future ages depended--he was to have an opportunity to exert to the utmost his feeble talents in opposing principles which he considered so destructive as those advanced on the present occasion. If he and his colleagues, said Mr. Martin, were able to satisfy the Court that the principles the reverse of those contended for on the part of the prosecution ought to be established, he would think he had not lived in vain.

Mr. Martin took pains to make it clear that neither Colonel Burr nor his counsel had ever admitted or suggested that Harman Blennerhassett was guilty of treason. What then was the propriety of Mr. Wirt saying that they were willing to sacrifice him, and that he might be hanged without pity or remorse on their part?

Mr. Martin then brought to bear all the wisdom acquired during his thirty-six years at the bar. He referred to Hale and Hawkins. He recalled the Statute of 39 Elizabeth Cap. 15, wherein A and B both consented to enter a house to rob and only A entered and B stood by, wherefore A was “ousted of his clergy” while B still had it. He cited the case of Pudsey in 1 Hale 534 to show how it came within the general principles of the cases of constructive presence as stated in Foster 349.

He, too, mentioned the case of My Lord Dacre who came with a band of men to steal deer in the park of one Pelham. And he noted that Hawkins, in his second volume, Chapter 9, section viii, page 442, also explained very clearly the principle of constructive presence. He admitted that in Great Britain there was a species of treason which consisted in the intention without any act consummating the guilt of treason. He meant, of course, compassing the death of the king when the crime was only imagined. But in America, since there was no king, there were only two species of treason, which were levying war against the United States or adhering to their enemies, giving them aid and comfort.

“Sir,” he exclaimed, “I execrate a contrary doctrine as highly tyrannical and oppressive. And here I beg leave to enter my censure against the decisions of the court in Pennsylvania on this subject in the cases of what are called the Whiskey and the Hot Water Insurrections.”

Having thus abruptly paid his compliments to the American judges with whose decisions he differed he went back across the sea to England and John Wedderbourn’s case and Deacon’s case and that of the king versus Captain Vaughan, who went aboard a vessel called the _Loyal Clencartie_ in the service of the French king to cruise against the subjects of the English king. As he expounded the law in this masterly fashion how could he have failed to bring a blush to the cheek of Mr. Ritchie of the _Enquirer_ who had used his columns to belittle Luther Martin and scoff at the absurdity of importing a Maryland lawyer to try a case in a Virginia court.

It was gossiped that during the preparation for his appearance Mr. Martin had drunk even more freely than was his usual custom. If so the indulgence had done nothing to befuddle his brain or dim his memory of precedents. Next he turned to the incident of Lord Balmerino entering the gates of Carlisle and holding the city for the Pretender. He cited other allegedly treasonable acts having to do with the efforts of the Stuarts to regain their throne. This was a fruitful field for English precedents for acts of treason. But, he contended, those who had levied war in Perth were charged with levying it in Perth. So, too, were those who levied war in Aberdeen charged with levying it in Aberdeen. He could find no case in which a person was charged with levying war in a place where he was not present.

“But,” he observed, “if the counsel for the Crown in Great Britain had found out this new doctrine discovered by the ingenuity of the counsel for this prosecution, prosecutions would have been easily conducted and much trouble saved. If this new doctrine be as the gentlemen effect to believe, unanswerably correct, then it shows incontrovertibly great ignorance on the part of the lawyers who prosecuted in Great Britain in encountering so much unnecessary trouble and adopting a mode of prosecution so difficult as they did, and the superior ingenuity of the gentlemen in discovering this very easy and plain mode.”

Then Mr. Martin was off after Nicholas Throgmorton, following his case with allusions to the cases of Alice Lisle and Mary Speke, who were so despitefully treated by Judge Jefferies of the Bloody Assizes. He delved into the eighteenth year of the reign of King Edward I to bring forth the case of Bago de Clare to whose house one John Wallis, a clerk, brought a letter of citation from the Archbishop of Canterbury, and some of de Clare’s family forced Wallis to eat the process and wax seal affixed thereto. And de Clare pleaded that he was not required to answer the suit brought against him until the principal actors had been convicted. So he was released on bail to answer after the principals had been convicted. From which incident, which had happened more than five centuries before, Mr. Martin sought to prove that in the State of Virginia in the year of Our Lord 1807, Colonel Burr could not legally be brought to trial until Harman Blennerhassett had been tried and convicted. If Mr. Botts’s allusion to the Crucifixion and Mr. MacRae’s use of Uriah’s death through the connivance of David are excepted, Mr. Martin deserved the prize for going farthest back into history for a precedent.

The speaker had occupied the time of the Court for the entire day and the hour was growing late. When asked if he could finish his argument that evening he replied that he could not. So the Court was adjourned until the usual hour on the morrow and judge, jury, learned counsel, prisoner, witnesses, and spectators drew a sigh of relief and went off to refresh themselves and enjoy as much of a night’s rest as the hot, humid atmosphere permitted.

When Court reconvened on Saturday morning, August 29, Mr. Martin resumed his argument. Here he gave his attention to the opinion in the case of Bollman and Swartwout. He brought out that when the opinion was given only four of the seven judges of the Supreme Court were sitting. Would four judges in an extrajudicial manner have undertaken to settle the construction of the law so infinitely important to the United States? Would they have decided so important a question in a collateral, irregular manner on a point not immediately before them? And that also without the aid of the other three judges?

Even if they had done so, contended Mr. Martin, their decision “certainly deserves no credit as binding on this Court. As a binding judicial opinion it ought to have no more weight than the ballad or song of Chevy Chase.”

Mr. Martin alluded to Mr. Hay’s statement “with great zeal and pathos, that he pledged his own and the life of his children and posterity, on the propriety of the doctrine which he has advocated: that, if they avoid conspiracies, that if they be innocent, they will be safe.”

“A most delusive doctrine,” he exclaimed. And he warned Mr. Hay: “If he be now in the full tide of successful experiment, in the enjoyment of the approbation of his country and his government, so was, not long ago, the gentleman whom I advocate. He was as highly distinguished by the kind favor of the people as he could be by their suffrages.

“It was then incredible that their favor should so soon be changed to calumny and rancor of party into the most malignant hatred. The gentleman may now think himself perfectly safe, by the prevalence of his party and his principles; but the day very possibly may come when he may find himself as obnoxious as the gentleman whom I defend.

“He may possibly by the same means, the malice, the injustice and violence of party spirit, like my client, not only find himself reviled and calumniated, but his dearest friends abused and persecuted. I should be sorry that such a prediction should be realized with respect to any gentleman; but, such are the natural consequences of his own pernicious doctrine, and those we oppose.”

And now the speaker arrived at the end of his argument. Those of the assemblage whose minds may have wandered now and then in the course of Mr. Martin’s exposition of the technicalities of the law were brought to attention by the solemnity of his countenance and the careful weighing of his words:

“When the sun mildly shines upon us, when the gentle zephyrs play around us, we can easily proceed forward in the straight path of our duty. But when the bleak clouds enshroud the sky with darkness, when the tempest rages, the winds howl and the waves break over us--when the thunders awfully roar over our heads and the lightnings of heaven blaze around us--it is then that all the energies of the human soul are called into action.

“It is then that the truly brave man stands firm at his post. It is then that by an unshaken performance of duty man approaches the nearest possible to the Divinity. Nor is there any object in the creation on which the Supreme Being can look down with more delight and approbation than on a human being in such a situation and thus acting.”

The speaker turned to look straight into the eyes of the Chief Justice as he continued: “May that God who now looks down upon us, who has in his infinite wisdom called you into existence and placed you in that seat to dispose justice to your fellow citizens, to preserve and protect innocence against persecution--may that God so illuminate your understanding that you may know what is right; and may he nerve your soul with firmness and fortitude to act according to that knowledge.”

So saying, Mr. Martin shuffled over to his seat. It is a safe assumption that the Chief Justice was not a little moved.

There were souvenir hunters even in those early days. In the _Gazette and General Advertiser_, organ of Richmond’s Federalists, on the morning of August 31 appeared this advertisement:

The Gentleman--who while I was on Sat. last addressing the court,
TOOK MY CANE from the seat behind me and carried it away--is
respectfully requested to send it when he has done with it, to
the Bar of the Swan Tavern. Luther Martin.

It hardly required a public notice to let people know where Mr. Martin in his moments of relaxation was most likely to be found.

_Chapter_ XVIII

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.