Blennerhassett’s use of the word “Emperor” as applied to Burr is peculiarly reminiscent of the language Peter Taylor attributed to him on their journey back to the island from Kentucky in the fall of 1806.
The heat was oppressing Blennerhassett again. “I find it very agreeable,” he wrote in his diary, “to get upon a chair by which I am enabled to raise my mouth to the lower tier of openings in the gratings of the windows and breathe another air for half an hour.”
When Court convened next day Mr. Wickham took up the question of what constituted an overt act of levying war, which must be proved before the guilt of treason can attach to the principal.
Here the Chief Justice interrupted to inquire if any adjudged case could be produced where the court was called upon to decide, and did decide, that the evidence submitted to the jury did or did not amount to proof of overt act. Mr. Hay broke in to say that he never knew the attempt to be made but once. That was before Judge Patterson, of the Supreme Court, and it had been unsuccessful. Mr. Wickham, notwithstanding, insisted that, “It is the right and duty of the court to instruct the jury what amounts in law to an overt act of levying war.” That was an important point and more was to be heard of it. Mr. Wickham concluded his argument with a satiric peroration of which Mr. Hay was the butt: “But what did the gentleman say in defining the ‘levying of war’? That there is no necessity for arms, nor for the employment of force! That there is no necessity even for potential force to effect the intended purpose by terror! That there is no necessity for the act to be public! That an overt act of treason may be committed without arms, without force, either actual or potential. If this were the law there would be no safety!”
In the time allotted to him Mr. Wickham had fairly well covered the English precedents touching on the case and exhibited other evidences of his profound legal knowledge. Had the poet Tom Moore been present he would have had even more tangible reason than enjoying the gracious hospitality of the gentleman’s house for saying that Mr. Wickham could hold his own in any court.
At this point Mr. Hay surprised the Court and the defense by announcing that he had two more witnesses to the alleged overt act whom he had somehow overlooked. One was Israel Miller who had come down from Pittsburgh with Comfort Tyler’s party. The other was Purley Howe, an Ohioan, who had made forty boat poles for Blennerhassett and, on the fateful evening of December 10, had come to the Ohio bank of the river to deliver them. The two witnesses added little to the testimony that already had been given. Miller made an estimate of men and arms and Howe testified to having seen two sentinels armed with rifles on the flatboat that came to the Ohio bank to pick up the boat poles.
The burden of the defense was now assumed by the ponderous Edmund Randolph. As befitted an elder statesman he announced that his duty as counsel to Mr. Burr was fortified by something more important, namely his duty as a citizen to combat and, if possible, refute the pernicious doctrine of constructive treason. He quoted Montesquieu to the effect that, “If the doctrine of treason be undeterminate in any country, however free its form of government, it is sufficient to make it degenerate into tyranny.”
In his zeal to protect his fellow man the gentleman was so bold as to lecture the Chief Justice. He adverted to Judge Marshall’s embarrassing statement in the case of Bollman and Swartwout that to be guilty of treason a person need not be present at the scene of the alleged overt act. Mr. Randolph said he could not bring himself to believe that the Supreme Court meant to uphold constructive treason. He contended that even if the language of Judge Marshall in his capacity as Chief Justice had been explicit and imperious, nevertheless the same Judge Marshall as the presiding officer in the subordinate court ought not to conform to it.
Realizing that this was rather a large order Mr. Randolph hastened to add, “I do not, I dare not, ask you to rebel nor prescribe what you should do. But let us pray Heaven to stay the arm of the destroying angel!”
Having thus adjured the Chief Justice, Mr. Randolph cited the opinions of the American justices—Patterson, Iredell, and Chase—claiming that they showed that an assemblage without force could not be regarded as treason. He agreed with his fellow counsel, Mr. Wickham, that such a contention was repugnant as well to the English doctrine. “Foster, Hale, Hawkins, Coke, Kelynge, Reeves and all other writers,” he asserted, “you will find concur in proving that not a single indictment for treason in levying war has ever been carried into complete effect in England without actual force.” Mr. Hay interrupted to explain that he had only meant to say that the provisions of the Constitution ought to be construed according to the principle of common sense.