The witness related his observation of the seizure at Marietta of Burr's few boats and provisions by the Ohio militia, and the sale of them by the Government; of the assemblage of the twenty or thirty men on Blennerhassett's island; of their quiet, orderly conduct; of Comfort Tyler's declaration "that he would not resist the constituted authorities, but that he would not be stopped by a mob"; of Mrs. Blennerhassett's taking part of her husband's library with her when she followed him, after the flight of the terrified little band from the island; and of the sale of the remainder of the cultivated visionary's books.[1205]
Simeon Poole, who had been sent by Governor Tiffin of Ohio to arrest Blennerhassett, said that he was not on the island, but from dusk until ten o'clock watched from a concealed place on the Ohio shore. He saw a few men walking about, who during the night kindled a fire, by the light of which it seemed to Poole that some of them were "armed." He could not be sure from where he watched, but they "looked like sentinels." However, Poole "could not say whether the persons ... were not merely loitering around the fire." There were some boats, he said, both big and little. Also, when anybody wanted to cross from the Ohio side, the acute Poole thought that "a watchword" was given. The night was cold, the rural sleuth admitted, and it was customary to build fires on the river-bank. He observed, however, another suspicious circumstance—"lanterns were passing ... between the house and boats.... Most of the people were without guns," he admitted; but, although he could not see clearly, he "apprehended that some of them had guns."[1206]
Morris P. Belknap, an Ohio business man, testified that he had hailed a boat and been taken to the island on the night when the gathering and flight took place.[1207] He saw perhaps twenty men in the house; "two or three ... near the door, had rifles, and appeared to be cleaning them. These were all the arms I saw." He also observed two or three boats.[1208]
Edmund P. Dana testified that, with two other young men, he had gone in a skiff to the island on that war-levying night.[1209] In the hall he saw about "fifteen or sixteen" men—"one of them was running some bullets." Dana was shown to another room where he met "colonel Tyler, Blennerhassett, Mr. Smith of New-York ... and three or four other gentlemen." He had met Tyler the day before, and was now "introduced to Mr. Smith and Doctor M'Castle[1210] who had his lady ... there." The men in the hall "did not appear to be alarmed" when Dana and his companions came in. Dana "never saw colonel Burr on the island."[1211]
The Government's counsel admitted that Burr was in Kentucky at that time.[1212]
Such was the testimony, and the whole of it, adduced to support the charge that Burr had, at Blennerhassett's island, on December 13, 1806, levied war against the United States. Such was the entire proof of that overt act as laid in the indictment when Marshall was called upon to make that momentous decision upon which the fate of Aaron Burr depended.
The defense moved that, since no overt act was proved as charged, collateral testimony as to what had been said and done elsewhere should not be received. Wickham opened the argument in an address worthy of that historic occasion. For nearly two days this superb lawyer spoke. Burr's counsel would, he said, have preferred to go on, for they could "adduce ... conclusive testimony" as to Burr's innocence. But only seven witnesses out of "about one hundred and forty" summoned by the Government had been examined, and it was admitted that these seven had given all the testimony in existence to prove the overt act.
John Wickham
If that overt act had not been established and yet the more than one hundred and thirty remaining witnesses were to be examined, it was manifest that "weeks, perhaps months," would elapse before the Government completed its case. It was the unhealthy season, and it was most probable that one or more jurors would become ill. If so, said Wickham, "the cause must lie over and our client, innocent, may be subjected to a prolongation of that confinement which is in itself ... punishment." Yet, after all this suffering, expense, and delay, the result must be the same as if the evidence were arrested now, since there was no testimony to the overt act other than that already given.