The youthful advocate was impressing Marshall as well as jury and auditors. "Do you mean to say," asked the Chief Justice, "that it is not necessary to state in the indictment in what manner the accused, who it is admitted was absent, became connected with the acts on Blennerhassett's island?" In reply Wirt condensed the theory of the prosecution: "I mean to say, that the count is general in modern cases; that we are endeavoring to make the accused a traitor by connection, by stating the act which was done, and which act, from his conduct in the transaction, he made his own; that it is sufficient to make this charge generally, not only because it is authorized by the constitutional definition, but because it is conformable to modern cases, in which the indictments are pruned of all needless luxuriances."[1227]
Burr's presence at the island necessary! If so, a man might devise and set in motion "the whole mechanism" of treason, "go a hundred miles" away, let it be operated by his agents, "and he is innocent, ... while those whom he has deluded are to suffer the death of traitors." How infamous! Burr only the accessory and Blennerhassett the principal! "Will any man believe that Burr who is a soldier bold, ardent, restless and aspiring, the great actor whose brain conceived and whose hand brought the plot into operation, should sink down into an accessory and Blennerhassett be elevated into a principal!"
Here Wirt delivered that passage which for nearly a hundred years was to be printed in American schoolbooks, declaimed by American youth, and to become second only to Jefferson's Proclamation, Messages, and letters, in fixing, perhaps irremovably, public opinion as to Aaron Burr and Harman Blennerhassett.[1228] But his speech was not all rhetoric. Indeed, no advocate on either side, except John Wickham and Luther Martin, approached him in analyses of authorities and closeness of reasoning.[1229]
"I cannot promise you, sir, a speech manufactured out of tropes and figures," remarked Botts in beginning his reply. No man better could have been found to break the force of the address of his young brother of the bar. Wirt had defaced his otherwise well-nigh perfect address by the occasional use of extravagant rhetoric, some of which, it appears, was not reported. Botts availed himself of one such display to make Wirt's argument seem absurd and trivial: "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 ... of heaving bosom and luscious waist, I am compelled to plod heavily and meekly through the dull doctrines of Hale and Foster." Botts continued, with daring but brilliant satire, to ridicule Wirt's unhappy rhetoric.[1230] Soon spectators, witnesses, jury, were in laughter. The older lawyers were vastly amused. Even Marshall openly enjoyed the humor.
His purpose thus accomplished, Botts now addressed himself to the evidence, to analyze which he had been assigned. And a perfect job he made of it. He spoke with impetuous rapidity.[1231] He reviewed the events at Blennerhassett's island: "There was war, when there was confessedly no war; and it happened although it was prevented!" As to arms: "No arms were necessary ... they might make war with their fingers." Yes, yes, "a most bloody war indeed—and ten or twelve boats." Referring to the flight from Blennerhassett's island, the sarcastic lawyer observed: "If I run away and hide to avoid a beating I am guilty and may be convicted of assault and battery!" What "simpletons" the people of Kentucky and Mississippi had been! "They hunted but could not find the war," although there it was, right among them![1232]
What was the moving force back of the prosecution? It was, charged Botts, the rescue of the prestige of Jefferson's Administration. "It has not only been said here but published in all the newspapers throughout the United States, that if Aaron Burr should be acquitted it will be the severest satire on the government; and that the people are called upon to support the government by the conviction of colonel Burr; ... even jurymen have been taught by the common example to insult him."
No lie was too contemptible to be published about him. For instance, "when the grand jury returned a true bill, he was firm, serene, unmoved, composed—no change of countenance.... Yet the next day they announced in the newspapers," declared Botts, "that he was in a state of indescribable consternation and dismay." Worse still, "every man who dares to look at the accused with a smile or present him the hand of friendship" is "denounced as a traitor."[1233]
Black but faithful was the picture the fearless lawyer drew of the Government's conduct.[1234] He dwelt on the devices resorted to for inflaming the people against Burr, and after they had been aroused, the demand that public sentiment be heeded and the accused convicted. Was that the method of justice! If so, where was the boasted beneficence of democracies? Where the righteousness and wisdom of the people? What did history tell us of the justice or mercy of the people? It was the people who forced Socrates to drink hemlock, banished Aristides, compelled the execution of Admiral Byng. "Jefferson was run down in 1780[1235] by the voice of the people." If the law of constructive treason were to be adopted in America and courts were to execute the will of the people, alas for any man, however upright and innocent, whom public opinion had been falsely led to condemn.[1236]
Hay, who had been ill for several days[1237] and was badly worn, spoke heavily for the greater part of two days.[1238] His address, though dull, was creditable; but he added nothing in thought or authorities to Wirt's great speech. His principal point, which he repeated interminably, was that the jury must decide both law and fact. In making this contention he declared that Marshall was now asked by Burr's counsel to do the very thing for which Chase had been impeached.[1239] Time and again the District Attorney insinuated that impeachment would be Marshall's fate if he did not permit the jury to hear all the testimony.[1240]
Charles Lee, Attorney-General under President Adams, and an intimate friend of Marshall,[1241] had joined Burr's legal forces some time before. In opening his otherwise dry argument, Lee called Marshall's attention to Hay's threat of impeachment. The exhausted District Attorney finally denied that he meant such a thing, and Marshall mildly observed: "I did not consider you as making any personal allusion, but as merely referring to the law."[1242] Thus, with his kindly tactfulness, Marshall put the incident aside.