The weather had turned hot again but neither Mr. Wickham nor his colleagues were to let themselves be discouraged by so trifling a matter, or to shorten their arguments so much as a sentence in order to save themselves exertion.
In introducing his case, Mr. Wickham proceeded at once to scotch the suggestion put forward by the prosecution that the motion to disqualify witnesses had been presented because the defense wished to suppress evidence. On the contrary, said his lawyer, the prisoner was more than willing that everything should be disclosed. But, the speaker pointed out, there was a practical difficulty resulting from the great number of witnesses the Government had summoned. If, he said, all of the 140 were examined, not only weeks but months would elapse, and throughout it all his client would be under confinement just as though he had been found guilty and was serving a sentence.
Having dealt with that matter to his satisfaction Mr. Wickham next directed his attention to the most obvious weakness in the prosecution’s case. That was its admission that when the alleged overt act had taken place on Blennerhassett Island Colonel Burr was many miles away.
To refresh the minds of the jury, he quoted from Article III, Section 3 of the Constitution which deals with treason against the United States and lays down that it “shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort” and adds the safeguard that “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”
To Mr. Wickham’s way of thinking the language of the Constitution made it abundantly clear that no person in the United States could be convicted of treason in levying war who was not personally present at the commission of the act.
And what was the prosecution doing? It was resorting to artificial rules of construction so that the words of the United States Constitution would be made to take an artificial meaning based on the statute law and common law of England. Mr. Wickham denied emphatically that the statute and common law of England could properly be applied to the Constitution of the United States. Mr. Wickham would go even farther than that. He would assert that no rule which holds a person guilty of treason who is absent from the scene of the overt act had ever practically obtained even in England.
Oh yes, Mr. Wickham, master of precedent that he was, knew that there were instances in English history which might be cited by the prosecution. But he had a remedy for that. He would mention them himself before the prosecution had a chance to do so. So he frankly admitted that Lord Coke, eminent English jurist and legal authority, and other writers after him, had laid down that there are no accessories in treason either before or after the fact, but that all are principals.
However, said Mr. Wickham, in spite of the principle declared by the authorities, no actual adjudications bear them out except that in the case of Sir Nicholas Throgmorton in the reign of Bloody Mary.
Mr. Wickham was well aware that there was not a lawyer of any standing at the Virginia bar who was not conversant with the account of the Throgmorton case as presented by Judge St. George Tucker in his appendix to 4th Blackstone’s Commentaries. Throgmorton had been charged with imagining the Queen’s death. At his trial the doctrine of constructive treason was insisted on by the prosecution and sanctioned by the judges. When Throgmorton requested that the law books be consulted the court told him none might be brought in, that they knew the law sufficiently without a book. And when the jury brought in a verdict of not guilty contrary to the wishes of the judges, the court committed them all to prison and fined them heavily.
But, said Mr. Wickham, the court on that occasion was so contrary, not only to the rules of law and justice, but even to those of decency, that he persuaded himself counsel on the other side would not rely on it as authority.