“Treason, like murder, is an act. You can’t think treason, you can’t plot treason, you can’t talk treason; you can only act it. In murder you must first prove the killing—the murderous act, before you may offer evidence of an intent. And so in treason. You must begin by proving the overt act of war against the country, before I can permit evidence of an intent which led up to it.”
This ruling throws Wirt abroad in his calculations. The “Federal bulldog” Martin grows vulgarly gleeful, Wirt correspondingly glum.
Being prodded by Marshall, chief justice, Wirt declares that the “act of war” was the assembling of forty armed men, under one Taylor, at Blennerhassett Island. They stopped at the island but a moment, and Aaron himself was in Lexington. None the less there were forty of them; they were armed; they were there by design and plan of Aaron, with an ultimate purpose of levying war against this Government. Wirt urges that constructive war was at that very island moment being waged, with Aaron personally absent but constructively present, and constructively waging such war.
At this setting forth, Marshall, chief justice, puckers his lips, as might one who thinks the argument far-fetched and overfinely spun. Martin, the “Federal bulldog,” does not scruple to laugh outright.
“Was ever heard such hash!” cries Martin. “Men may bear arms without waging war! Forty men no more mean war than four! Men may float down the Ohio, and still no war be waged. Because the hypochondriac Jefferson imagined war, we are to receive the thing as res adjudicata, and now give way while a pleasantly concocted tale, of that carnage of a presidential nightmare, is recited from the witness box. Sirs, you are not to fiddle folk onto a scaffold to any such tune as that, though a president furnish the music.”
Marshall, chief justice, still with pursed lips and knotted forehead, directs Wirt to proceed with his evidence of what, at Blennerhassett Island, he relies upon to constitute, constructively or otherwise, a state of war. Having heard the evidence, he will pass upon the points of law presented.
Wirt, desperate because he may do no better, puts forward one Eaton as a witness. The latter tells a long, involved story, which sounds vastly like fiction and not at all like fact, of conversations with Aaron. Aaron brings out in cross examination, that within ten days after he, Eaton, went with this tale to Jefferson, a claim for ten thousand dollars, which he had been pressing without success against the Government, was paid. Aaron suggests that Eaton, to induce payment of such claim, invented his narrative; and the suggestion is plainly acceptable to the jury.
Following Eaton, Wirt calls Truxton; and next the suspicious Morgan, who first wrote to Jefferson touching Aaron and his plans. Then follow Blennerhassett’s gardener and groom, and one Woodbridge, Blennerhassett’s man of business. Wirt, by these, proves Aaron’s frequent presence on the island; the boats building at Marietta; the advent of Taylor with his forty armed men, and there the relation ends. In all—the testimony, not a knife is ground, not a flint is picked, not a rifle fired; the forty armed men do not so much as indulge in drill. For all they said or did or acted, the forty might have been explorers, or sightseers, or settlers, or any other form of peaceful whatnot.
“I suppose,” observes Marshall, chief justice, bending his black eyes warningly upon Wirt—“I suppose it unnecessary to instruct counsel that guilt will not be presumed?”
Wirt replies stiffly that counsel for the Government, at least, require no instructions; whereat Martin the “Federal bulldog” barks hoarsely up, that what counsel for the Government most require, and are most deficient in, is a case and the evidence of it. Wirt pays no heed to the jeer, but announces that under the ruling of the court, made before evidence was introduced, he has nothing more to offer touching acts of overt war. He rests his case, he says, on that point; and thereupon, the defense take issue with him. The Government, Aaron declares, has failed to make out even the shadow of a treason. There is nothing which demands reply; he will call no witnesses.