Mr. MacRae then took his fling at the Chief Justice’s opinion in the Bollman and Swartwout case. So the defense considered that it was not a regular, solemn opinion? That it was not delivered on a point depending before the judges, but extrajudicial and therefore not authority? Why, declared Mr. MacRae, the language was so explicit and pointed that it could not possibly be misunderstood!
“I consider it as completely proved by the opinion,” he continued, “... that if an unlawful assemblage of men meet together for a treasonable purpose, it is not necessary that arms should be in the hands of those who are concerned, in order to make them traitors. I have imagined that their meeting together in this manner (in military array) would be sufficient to show that their purpose was treasonable.” The speaker considered also that the reason of East on the subject was conclusive where, among other things, he held that “any assembly of persons met for a treasonable purpose, armed and arrayed in a warlike manner, is bellum levatum, though not percussum!”
On that note MacRae ended his argument. “Bellum levatum, though not percussum”—that theme with variations was to get exhaustive treatment from the next speaker. But the court had heard enough for one day.
When, on the morning of the 25th, the bailiff called for order, the dashing 34-year-old William Wirt entered the lists as champion for the prosecution. Critics of the Administration complained bitterly of President Jefferson using the public money to employ private counsel when there were official prosecutors on the payroll for the purpose of performing that particular task. But the President felt he could not leave so great a responsibility to the plodding Hay, especially after the defense had assembled such a dazzling array of counsel. On this hot August morning the time had come for Wirt to prove to the public that the fee he would receive from the Government was well earned.
Wirt was faced with a dilemma. At this phase of his career his chief asset was a natural flow of words that was surpassed only by that of James Wilkinson. While eloquence might be counted on to sway a jury its effect on the Chief Justice was highly problematical. Judge Marshall’s style was logical and free from embellishments. He also had a keen sense of the ridiculous. Thus, as Wirt warmed to his task and instinctively soared to rhetorical heights, he found himself being rudely brought down to earth out of anxiety over what mischievous thoughts lay behind the solemn countenance of the Chief Justice.
The speaker commenced his dissertation by undertaking to clear himself of personal malice toward the accused. The humanity and justice of the nation, he observed, would revolt at the idea of a prosecution pushed on against a life which stood protected by the laws.
“I would not,” he declared, “plant a thorn, to rankle for life in my heart by opening my lips in support of a prosecution which I felt and believed to be unjust.”
Mr. Wirt noted that the gentlemen of the defense appeared to feel a very extraordinary and unreasonable degree of sensibility on this occasion. They seemed to forget the nature of the charge and that he and his colleagues were the prosecutors. But the lawyers of the prosecution did not stand there to pronounce a panegyric on the prisoner. They were there to urge on him the crime of treason against his country!
The lawyers of the prosecution, Mr. Wirt warned, were not going to mince matters. When they spoke of treason they must call it treason. When they spoke of a traitor they must call him a traitor. When they spoke of a plot to dismember the Union, to undermine the liberties of a great portion of the people of this country and subject them to a usurper and a despot, they were obliged to use the terms that conveyed those ideas.
Why, then, were the gentlemen of the defense so sensitive? Why on those occasions so necessary, so unavoidable, did they shrink back with so much agony of nerve, as if instead of being in a hall of justice they were in a drawing room with Colonel Burr and were barbarously violating towards him every principle of decorum and humanity?