However, pursued the speaker, private friendship for the accused and his connections was not his only inducement. He was as well thankful to Heaven that when a question as to the right construction of the principles of treason was to be decided—on which the happiness or misery of the present and future ages depended—he was to have an opportunity to exert to the utmost his feeble talents in opposing principles which he considered so destructive as those advanced on the present occasion. If he and his colleagues, said Mr. Martin, were able to satisfy the Court that the principles the reverse of those contended for on the part of the prosecution ought to be established, he would think he had not lived in vain.
Mr. Martin took pains to make it clear that neither Colonel Burr nor his counsel had ever admitted or suggested that Harman Blennerhassett was guilty of treason. What then was the propriety of Mr. Wirt saying that they were willing to sacrifice him, and that he might be hanged without pity or remorse on their part?
Mr. Martin then brought to bear all the wisdom acquired during his thirty-six years at the bar. He referred to Hale and Hawkins. He recalled the Statute of 39 Elizabeth Cap. 15, wherein A and B both consented to enter a house to rob and only A entered and B stood by, wherefore A was “ousted of his clergy” while B still had it. He cited the case of Pudsey in 1 Hale 534 to show how it came within the general principles of the cases of constructive presence as stated in Foster 349.
He, too, mentioned the case of My Lord Dacre who came with a band of men to steal deer in the park of one Pelham. And he noted that Hawkins, in his second volume, Chapter 9, section viii, page 442, also explained very clearly the principle of constructive presence. He admitted that in Great Britain there was a species of treason which consisted in the intention without any act consummating the guilt of treason. He meant, of course, compassing the death of the king when the crime was only imagined. But in America, since there was no king, there were only two species of treason, which were levying war against the United States or adhering to their enemies, giving them aid and comfort.
“Sir,” he exclaimed, “I execrate a contrary doctrine as highly tyrannical and oppressive. And here I beg leave to enter my censure against the decisions of the court in Pennsylvania on this subject in the cases of what are called the Whiskey and the Hot Water Insurrections.”
Having thus abruptly paid his compliments to the American judges with whose decisions he differed he went back across the sea to England and John Wedderbourn’s case and Deacon’s case and that of the king versus Captain Vaughan, who went aboard a vessel called the Loyal Clencartie in the service of the French king to cruise against the subjects of the English king. As he expounded the law in this masterly fashion how could he have failed to bring a blush to the cheek of Mr. Ritchie of the Enquirer who had used his columns to belittle Luther Martin and scoff at the absurdity of importing a Maryland lawyer to try a case in a Virginia court.
It was gossiped that during the preparation for his appearance Mr. Martin had drunk even more freely than was his usual custom. If so the indulgence had done nothing to befuddle his brain or dim his memory of precedents. Next he turned to the incident of Lord Balmerino entering the gates of Carlisle and holding the city for the Pretender. He cited other allegedly treasonable acts having to do with the efforts of the Stuarts to regain their throne. This was a fruitful field for English precedents for acts of treason. But, he contended, those who had levied war in Perth were charged with levying it in Perth. So, too, were those who levied war in Aberdeen charged with levying it in Aberdeen. He could find no case in which a person was charged with levying war in a place where he was not present.
“But,” he observed, “if the counsel for the Crown in Great Britain had found out this new doctrine discovered by the ingenuity of the counsel for this prosecution, prosecutions would have been easily conducted and much trouble saved. If this new doctrine be as the gentlemen effect to believe, unanswerably correct, then it shows incontrovertibly great ignorance on the part of the lawyers who prosecuted in Great Britain in encountering so much unnecessary trouble and adopting a mode of prosecution so difficult as they did, and the superior ingenuity of the gentlemen in discovering this very easy and plain mode.”
Then Mr. Martin was off after Nicholas Throgmorton, following his case with allusions to the cases of Alice Lisle and Mary Speke, who were so despitefully treated by Judge Jefferies of the Bloody Assizes. He delved into the eighteenth year of the reign of King Edward I to bring forth the case of Bago de Clare to whose house one John Wallis, a clerk, brought a letter of citation from the Archbishop of Canterbury, and some of de Clare’s family forced Wallis to eat the process and wax seal affixed thereto. And de Clare pleaded that he was not required to answer the suit brought against him until the principal actors had been convicted. So he was released on bail to answer after the principals had been convicted. From which incident, which had happened more than five centuries before, Mr. Martin sought to prove that in the State of Virginia in the year of Our Lord 1807, Colonel Burr could not legally be brought to trial until Harman Blennerhassett had been tried and convicted. If Mr. Botts’s allusion to the Crucifixion and Mr. MacRae’s use of Uriah’s death through the connivance of David are excepted, Mr. Martin deserved the prize for going farthest back into history for a precedent.
The speaker had occupied the time of the Court for the entire day and the hour was growing late. When asked if he could finish his argument that evening he replied that he could not. So the Court was adjourned until the usual hour on the morrow and judge, jury, learned counsel, prisoner, witnesses, and spectators drew a sigh of relief and went off to refresh themselves and enjoy as much of a night’s rest as the hot, humid atmosphere permitted.