Mr. Randolph pricked up his ears at the words “common sense.” With the ferocity of a tiger attacking its helpless prey he sprang upon the poor District Attorney.
“Common sense,” he sneered. “Common sense, it seems, creates an accessory and introduces him as a principal, contrary to the Constitution. Common sense does not say, like the Constitution, that treason consists in levying war, but brings in a new person to participate in the guilt and punishment of treason. This common sense extends, instead of restraining, the rigor of capital punishment. This common sense is oppression and tyranny. I pray Heaven to save us from the deductions of such common sense as this!”
Mr. Randolph next complained of the vagueness of the indictment. The accused, he charged, must shape his defense to what does not appear. The laws of this country called on him to defend himself, but they had not apprised him against what. He must, lamented Mr. Randolph, sit down and conjecture what the charge was. And where, he asked, was the accused to obtain the information? Was he to write to the President, or to the Federal Judge, or to the public prosecutor?
In his little essay on “Common Sense” Mr. Randolph mentioned its having created an accessory and introduced him as a principal. He now returned to that theme, contending that before anybody else could be tried, the principal in the case had first to be convicted. If, he argued, the previous conviction of the principal was not necessary, then the Government could bide its time until the death of the principal so that the accessory might thus be deprived of the main chance of disproving his offense and thereby be unjustly oppressed. This seemingly profound reasoning was the defense’s subtle means of insinuating that if there had actually been an overt act the principal in it was not Burr, who was many miles away, but Harman Blennerhassett who was actually present at the scene.
The arguments of Mr. Wickham and Mr. Randolph completed for the time being the presentation of the defense’s side of the case. It now came the turn of the prosecution. But Mr. Hay pleaded for time. He called Judge Marshall’s attention to the fact that it was then Friday and expressed the hope that further discussion of the motion made by the defense could be postponed until Monday. That, he said, would give the prosecution time to reflect on the matter.
Mr. Wickham, Mr. Martin and Mr. Botts at once joined forces in protesting so long a postponement. But Mr. Hay and Mr. Wirt held out stoutly for a delay. An argument, they said, which had occupied two whole days in the delivery before the Court must have required considerable labor and reflection to arrange and digest. It was, they contended, unreasonable therefore to suppose that such an elaborate argument could be fully comprehended and an answer prepared in a single day.
Mr. Wirt observed that five or six gentlemen of great professional experience were united in the defense. He suggested that the motion might be regarded as a mere ruse de guerre which they have sprung on counsel for the United States as from an ambuscade. More vital still, he reminded that if the motion were to succeed there would be an end of the case.
Judge Marshall, impressed by the arguments of counsel for the prosecution, removed any possible charge of favoritism to the defense on such an important issue by granting Mr. Hay’s request. Argument was forthwith postponed until the following Monday.
Nevertheless the Court did meet briefly on Saturday. It was for the purpose of arraigning Mr. Blennerhassett, who up until now had been present at the sessions in a somewhat anomalous capacity. So he was asked to stand while the indictment for treason was read to him. Here Mr. Botts interrupted the proceedings to call attention to the fact that there was a misnomer in the indictment and he had not had a chance to consult with his associates on the subject. He asked that the arraignment therefore be postponed. The request was granted by the ever obliging Chief Justice.
The two attorneys for the defense had made it emphatic in their arguments that the fundamental issue was whether treason as strictly defined in the Constitution was to prevail, or whether the broader and vaguer principle of constructive treason was to be admitted. If the definition of treason as laid down in the Constitution were followed to the letter the chances were good that Aaron Burr would go free.