Mr. Wickham, intimating that he had made a diligent and exhaustive search of all the authorities, declared that he could find no case in English law where a person who was not present at the scene of the overt act had been convicted or even brought to trial, except that of Mary Speke, in the fourth year of the reign of King James II, at the time of Monmouth’s Rebellion. But that, Mr. Wickham made clear, was when the spirit of persecution was high. He thought it probable that it was one of the cases decided by the execrable Judge Jefferies at the Bloody Assizes.
Mr. Wickham agreed that in England there was a treason for compassing the death of the King where the mere agreement to do the act itself constitutes the crime. He thanked God that in this country there was no subject to whom such a law applied and that the United States Constitution strictly forbade that intention alone—which was so liable to be misunderstood and misrepresented—should in any case be construed into treason.
He cited also the cases of Mrs. Elizabeth Gaunt, an Anabaptist who was burned alive, and Lady Lisle, widow of a regicide, as persons convicted as accessories merely for receiving traitors. But in both instances, he emphasized, sentence had been passed by the wicked Judge Jefferies. After Mr. Wickham had thus associated these possible precedents with such outrageous circumstances the prosecution would be daring indeed to use them.
Having warmed to his task, Mr. Wickham proceeded to give his audience an impressive demonstration of his legal erudition. He referred to Foster’s Crown Law and from that skipped to Hume’s History of England. He quoted passages from Tremaine’s Pleas of the Crown and boldly plowed his way through Hale, Stanford, Brooke, and Hawkins. He alluded to the conduct of the Duke of Cumberland after the Battle of Culloden, and made mention of Flora Macdonald who had helped with the escape of the Pretender. Surely, asserted Mr. Wickham, she would have been charged with treason if the doctrine that persons absent and not in arms had prevailed in England!
From citing the authorities in English, Mr. Wickham turned to Latin declaring that “Dixit quod in hoc quod factume est proditio, non potest esse accessarius felonice et proditire non potest esse accessarius.” Not content with Latin he lapsed into some strange tongue that must have confused Mr. Robertson, the reporter, in spite of his knowledge of five languages. But Mr. Robertson did his best and set it down thus: “Nota P. Hussey C.I. que accessory ne poet este a treason; le recetment de traitor, ne poet este tantum felony, mes est treason.” Mr. Wickham’s was a brilliant display of erudition. Perhaps the passage quoted was as familiar to his fellow lawyers as the golden bird of prey on the sign in front of the “Eagle Tavern.” One wonders what the jury made of the gentleman’s scholarship and in which direction they were swayed.
Again Mr. Wickham repeated the strict definition of treason as set down in the Constitution—the levying of war against the United States, the overt act and the two witnesses. Its object, he said, was clear. It was to perpetuate the liberties of the people of this country. The framers of the instrument well knew the dreadful punishments inflicted and the grievous oppressions produced by constructive treason in other countries. That is why their language was plain, simple, and perspicuous.
Mr. Wickham demanded of opposing counsel what security would be afforded by the Constitution to the best or meanest man in the country if the construction on which they insisted was correct. If it was correct then all that was wanted to fix the guilt of treason on an individual was to have an insurrection existing somewhere in the United States, no matter where.
Now, he said, suppose the Government should wish to destroy any man. They find him in Georgia, and the insurrection happens in New Hampshire. This would suffice for the purpose. But if their cause was to go on the prosecution would have to contend that even less would suffice to create treason, that even an insurrection was not necessary, but that a peaceable assemblage going down the Ohio River would be sufficient for their purpose.
Continuing to expound his hypothetical case Mr. Wickham suggested that under the prosecution’s construction a man might be seized and hurried by force from New Hampshire to Georgia, or to any part of the United States which his accusers might choose as best for the purpose. Obviously he had reversed the journey of his client from Alabama to Virginia. It would be in vain for him to prove that he was not present when the offense of which he was accused was committed, that he never at any period of his life had been there, that the actors and the scene were alike unknown to him. Wretches who from interest or revenge were ready to further the views of his oppressors, would present themselves and he might be convicted of levying open war against the Government with people whom he never saw and at a place where he never was!
The hour was now growing late and Mr. Wickham had talked the better part of the day. His argument might have proved tedious to his audience composed entirely of men. Surely a little ribald humor was in order after all the heavy reasoning he had forced them to endure. So, casting aside his dignity, Mr. Wickham gave it to them.