The prosecution contended that the crime consisted of "the fact and the intention," and that the Government might first prove either of these; the defense insisted that the overt act must be shown before any testimony, explanatory or confirmatory of that fact, can be received. To prove first the fact charged was certainly "the most useful ... and ... natural order of testimony"; but no fixed rule of evidence required it, and no case had been cited in which any court had ever "forced" it on counsel for the prosecution.
The different impressions made upon the minds of the jury by the order of testimony was important, said Marshall: "Although human laws punish actions, the human mind spontaneously attaches guilt to intentions." When testimony had prepared the mind to look upon the prisoner's designs as criminal, a jury would consider a fact in a different light than if it had been proved before guilty intentions had been shown. However, since no rule prevented the prosecution from first proving either, "no alteration of that arrangement ... will now be directed."
But, continued Marshall, "the intention which is ... relevant in this stage of the inquiry is the intention which composes a part of the crime, the intention with which the overt act itself was committed; not a general evil disposition, or an intention to commit a distinct [different] fact." Testimony as to such intentions, "if admissible at all, is received as corroborative or confirmatory testimony," and could not precede "that which it is to corroborate or confirm."
Apply this rule to Eaton's testimony: it would be admissible only "so far as his testimony relate[d] to the fact charged in the indictment, ... to levying war on Blennerhassett's island," and the "design to seize on New-Orleans, or to separate by force, the western from the Atlantic states"; but "so far as it respect[ed] other plans to be executed in the city of Washington, or elsewhere," Eaton's story would be at best merely "corroborative testimony," and, "if admissible at any time," could be received only "after hearing that which it is to confirm."
So let Hay "proceed according to his own judgment." Marshall would not exclude any testimony except that which appeared to be irrelevant, and upon this he would decide when it was offered.[1199]
Again Eaton was called to the stand. Before he began his tale, he wished to explain "the motives" of his "own conduct." Marshall blandly suggested that the witness stick to Burr's revelations to him. Then, said Eaton, "concerning any overt act, which goes to prove Aaron Burr guilty of treason I know nothing.... But concerning Colonel Burr's expressions of treasonable intentions, I know much."
Notwithstanding Marshall's intimation that Eaton must confine his testimony to Burr, "the hero of Derne" was not to be denied his self-vindication; not even the Chief Justice should check his recital of his patriotism, his glories, his wrongs. Burr had good reasons for supposing him "disaffected toward the Government"; he then related at length his services in Africa, the lack of appreciation of his ability and heroism, the preferment of unworthy men to the neglect of himself. Finally, Eaton, who "strutted more in buskin than usual," to the amusement of "the whole court,"[1200] delivered his testimony, and once more related what he had said in his deposition. Since Marshall had "decided it to be irrelevant," Eaton omitted the details about Burr's plans to murder Jefferson, turn Congress out of the Capitol, seize the Navy, and make himself ruler of America at one bold and bloody stroke.[1201]
Commodore Truxtun then gave the simple and direct account, already related, of Burr's conversation with him;[1202] Peter Taylor and Jacob Allbright once more told their strange tales; and the three Morgans again narrated the incidents of Burr's incredible acts and statements while visiting the elder Morgan at Morganza.[1203]
William Love, an Englishman, formerly Blennerhassett's servant—a dull, ignorant, and timorous creature—testified to the gathering of "about betwixt twenty and twenty-five" men at his employer's island, some of whom went "out a gunning." He saw no other arms except those belonging to his master, nor did he "see any guns presented," as Allbright had described. Blennerhassett told him that if he would go with him to the Washita, he should have "a piece of land." Love "understood the object of the expedition was to settle Washita lands."[1204]
Dudley Woodbridge, once a partner of Blennerhassett, told of Burr's purchase from his firm of a hundred barrels of pork and fifteen boats, paid by a draft on Ogden of New York; of Blennerhassett's short conversation with Woodbridge about the enterprise, from which he inferred that "the object was Mexico"; of his settlement with Blennerhassett of their partnership accounts; of Blennerhassett's financial resources; and of the characteristics of the man—"very nearsighted," ignorant of military affairs, a literary person, a chemist and musician, with the reputation of having "every kind of sense but common sense."