And so the prosecution was back again, lunging at the chink in the defense’s armor which the Chief Justice, in one rare moment of careless workmanship, had left there.
What said the Supreme Court? Mr. Wirt read the offending passage: “... if a body of men be assembled, for the purpose of affecting by force a treasonable purpose, all those who perform any part, however minute or however remote from the scene of action, and who are actually leaguered in the general conspiracy, are to be considered as traitors.”
The constant reiteration of his error must have brought a blush to the tanned cheek of the Chief Justice. Or had constant repetition by now rendered him immune to embarrassment?
Counsel for the defense, said Mr. Wirt, had taken the bold and difficult ground that the passage which he had read was extrajudicial, a mere obiter dictum. They were, he insisted, mistaken. It was a direct adjudication of a point immediately before the Court.
The speaker referred to the fact that Judge Marshall had been asked by the defense to disregard the Bollman-Swartwout decision. But, he asked, how could an inferior court control the decision of the superior court? If the Chief Justice, sitting as a circuit court, had the right to disregard the rule decided by the Supreme Court and to adopt a different rule, then every other inferior court had a right to do the same. Then there would be as many various rules as to treason as there were courts. The result, Mr. Wirt insisted, might be—and certainly would be—that what would be treason in one circuit would not be treason in another, and a man might be hanged in Pennsylvania for an act against the United States, of which he would be perfectly innocent in Virginia.
And, continued Mr. Wirt, if treason requires the actual presence at the scene of the assemblage, how easy it would be for the principal traitor to avoid this guilt and escape punishment forever. He might go into distant states and from one state to another. He might secretly wander, like a demon of darkness, from one end of the continent to the other. He might enter into the confidence of the simple and unsuspecting. He might pour his poison into the minds of those who were before innocent. He might seduce them into love of his person, offer them advantages, pretend that his measures were honorable and beneficial, connect them in his plot and attach them to his glory.
Mr. Wirt’s hypothetical case was beginning to show a striking resemblance to what Aaron Burr was charged with having done. And he was not yet through. This imaginary man might prepare the whole mechanism of the stupendous and destructive engine and put it in motion. Let the rest be done by his agents. He might then go a hundred miles from the scene of action. Let him but keep himself from the scene of the assemblage and the immediate site of battle and he would be innocent in law, while those whom he had deluded would suffer the death of traitors!
“Who,” he asked, “is the most guilty of treason? The poor, weak, deluded instruments, or the artful and ambitious man who corrupted and misled them? There is no comparison between his guilt and theirs. And yet you secure impunity to him, while they are to suffer death! Is this according to the rule of reason?” Here Mr. Wirt launched forth on a lengthy dissertation on the subject of principals and accessories before and after the fact that did credit to his familiarity with legal precepts and the dicta of the authorities both in this country and in England.
And now the speaker poised himself for the supreme effort, while a hush of anticipation fell over the assemblage.
“Who is Blennerhassett?” he inquired in his melodious voice. “A native of Ireland, a man of letters, who fled from the storms of his own country to find quiet in ours. His history shows that war is not the natural element of his mind. If it had been, he never would have exchanged Ireland for America. So far is an army from furnishing the society natural and proper to Mr. Blennerhassett’s character that, on his arrival in America, he retired even from the population of the Atlantic States and sought quiet and solitude in the bosom of our western forests.”