It is not every day that a lawyer has a Vice-President of the United States as his client. And subsequent history has shown that it is exceptional indeed for a lawyer to have the privilege and honor of exercising his talents to save a Vice-President of the United States from the gallows. As John Wickham rose to defend his motion, with his shrewd sense of values, he could not have failed to be aware that this was the greatest moment in his career.

Obviously counsel for the defense were not surprised when the Chief Justice granted Mr. Wickham the right to make the motion. As learned in the law as the gentleman was known to be, he could not have made the finished argument he did without long and careful preparation.

He approached his task with an air of confidence derived from his acknowledged leadership at the Virginia bar and the many victories to his credit, a number of them over the plodding Hay. This confidence was fostered by his realization of the great difficulty of sustaining any charge of treason under the Constitution of the United States and of the weakness of the evidence in this particular case. Suave, refined, and elegant, he was the envy of his less distinguished legal brethren.

The weather had turned hot again but neither Mr. Wickham nor his colleagues were to let themselves be discouraged by so trifling a matter, or to shorten their arguments so much as a sentence in order to save themselves exertion. In introducing his case, Mr. Wickham proceeded at once to scotch the suggestion put forward by the prosecution that the motion to disqualify witnesses had been presented because the defense wished to suppress evidence. On the contrary, said his lawyer, the prisoner was more than willing that everything should be disclosed. But, the speaker pointed out, there was a practical difficulty resulting from the great number of witnesses the Government had summoned. If, he said, all of the 140 were examined, not only weeks but months would elapse, and throughout it all his client would be under confinement just as though he had been found guilty and was serving a sentence.

Having dealt with that matter to his satisfaction Mr. Wickham next directed his attention to the most obvious weakness in the prosecution’s case. That was its admission that when the alleged overt act had taken place on Blennerhassett Island Colonel Burr was many miles away.

To refresh the minds of the jury, he quoted from Article III, Section 3 of the Constitution which deals with treason against the United States and lays down that it “shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort” and adds the safeguard that “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

To Mr. Wickham’s way of thinking the language of the Constitution made it abundantly clear that no person in the United States could be convicted of treason in levying war who was not personally present at the commission of the act.

And what was the prosecution doing? It was resorting to artificial rules of construction so that the words of the United States Constitution would be made to take an artificial meaning based on the statute law and common law of England. Mr. Wickham denied emphatically that the statute and common law of England could properly be applied to the Constitution of the United States. Mr. Wickham would go even farther than that. He would assert that no rule which holds a person guilty of treason who is absent from the scene of the overt act had ever practically obtained even in England.

Oh yes, Mr. Wickham, master of precedent that he was, knew that there were instances in English history which might be cited by the prosecution. But he had a remedy for that. He would mention them himself before the prosecution had a chance to do so. So he frankly admitted that Lord Coke, eminent English jurist and legal authority, and other writers after him, had laid down that there are no accessories in treason either before or after the fact, but that all are principals.

However, said Mr. Wickham, in spite of the principle declared by the authorities, no actual adjudications bear them out except that in the case of Sir Nicholas Throgmorton in the reign of Bloody Mary.

Mr. Wickham was well aware that there was not a lawyer of any standing at the Virginia bar who was not conversant with the account of the Throgmorton case as presented by Judge St. George Tucker in his appendix to 4th Blackstone’s Commentaries. Throgmorton had been charged with imagining the Queen’s death. At his trial the doctrine of constructive treason was insisted on by the prosecution and sanctioned by the judges. When Throgmorton requested that the law books be consulted the court told him none might be brought in, that they knew the law sufficiently without a book. And when the jury brought in a verdict of not guilty contrary to the wishes of the judges, the court committed them all to prison and fined them heavily.

But, said Mr. Wickham, the court on that occasion was so contrary, not only to the rules of law and justice, but even to those of decency, that he persuaded himself counsel on the other side would not rely on it as authority.

Mr. Wickham, intimating that he had made a diligent and exhaustive search of all the authorities, declared that he could find no case in English law where a person who was not present at the scene of the overt act had been convicted or even brought to trial, except that of Mary Speke, in the fourth year of the reign of King James II, at the time of Monmouth’s Rebellion. But that, Mr. Wickham made clear, was when the spirit of persecution was high. He thought it probable that it was one of the cases decided by the execrable Judge Jefferies at the Bloody Assizes.

Mr. Wickham agreed that in England there was a treason for compassing the death of the King where the mere agreement to do the act itself constitutes the crime. He thanked God that in this country there was no subject to whom such a law applied and that the United States Constitution strictly forbade that intention alone—which was so liable to be misunderstood and misrepresented—should in any case be construed into treason.

He cited also the cases of Mrs. Elizabeth Gaunt, an Anabaptist who was burned alive, and Lady Lisle, widow of a regicide, as persons convicted as accessories merely for receiving traitors. But in both instances, he emphasized, sentence had been passed by the wicked Judge Jefferies. After Mr. Wickham had thus associated these possible precedents with such outrageous circumstances the prosecution would be daring indeed to use them.

Having warmed to his task, Mr. Wickham proceeded to give his audience an impressive demonstration of his legal erudition. He referred to Foster’s Crown Law and from that skipped to Hume’s History of England. He quoted passages from Tremaine’s Pleas of the Crown and boldly plowed his way through Hale, Stanford, Brooke, and Hawkins. He alluded to the conduct of the Duke of Cumberland after the Battle of Culloden, and made mention of Flora Macdonald who had helped with the escape of the Pretender. Surely, asserted Mr. Wickham, she would have been charged with treason if the doctrine that persons absent and not in arms had prevailed in England!

From citing the authorities in English, Mr. Wickham turned to Latin declaring that “Dixit quod in hoc quod factume est proditio, non potest esse accessarius felonice et proditire non potest esse accessarius.” Not content with Latin he lapsed into some strange tongue that must have confused Mr. Robertson, the reporter, in spite of his knowledge of five languages. But Mr. Robertson did his best and set it down thus: “Nota P. Hussey C.I. que accessory ne poet este a treason; le recetment de traitor, ne poet este tantum felony, mes est treason.” Mr. Wickham’s was a brilliant display of erudition. Perhaps the passage quoted was as familiar to his fellow lawyers as the golden bird of prey on the sign in front of the “Eagle Tavern.” One wonders what the jury made of the gentleman’s scholarship and in which direction they were swayed.

Again Mr. Wickham repeated the strict definition of treason as set down in the Constitution—the levying of war against the United States, the overt act and the two witnesses. Its object, he said, was clear. It was to perpetuate the liberties of the people of this country. The framers of the instrument well knew the dreadful punishments inflicted and the grievous oppressions produced by constructive treason in other countries. That is why their language was plain, simple, and perspicuous.

Mr. Wickham demanded of opposing counsel what security would be afforded by the Constitution to the best or meanest man in the country if the construction on which they insisted was correct. If it was correct then all that was wanted to fix the guilt of treason on an individual was to have an insurrection existing somewhere in the United States, no matter where.

Now, he said, suppose the Government should wish to destroy any man. They find him in Georgia, and the insurrection happens in New Hampshire. This would suffice for the purpose. But if their cause was to go on the prosecution would have to contend that even less would suffice to create treason, that even an insurrection was not necessary, but that a peaceable assemblage going down the Ohio River would be sufficient for their purpose.

Continuing to expound his hypothetical case Mr. Wickham suggested that under the prosecution’s construction a man might be seized and hurried by force from New Hampshire to Georgia, or to any part of the United States which his accusers might choose as best for the purpose. Obviously he had reversed the journey of his client from Alabama to Virginia. It would be in vain for him to prove that he was not present when the offense of which he was accused was committed, that he never at any period of his life had been there, that the actors and the scene were alike unknown to him. Wretches who from interest or revenge were ready to further the views of his oppressors, would present themselves and he might be convicted of levying open war against the Government with people whom he never saw and at a place where he never was!

The hour was now growing late and Mr. Wickham had talked the better part of the day. His argument might have proved tedious to his audience composed entirely of men. Surely a little ribald humor was in order after all the heavy reasoning he had forced them to endure. So, casting aside his dignity, Mr. Wickham gave it to them.

He noted that by an act of Parliament in the reign of Henry VIII, it was made treason for any woman the king should marry, thinking her to be a true maid, or virgin, to marry him if she were not so.

Now, ventured the speaker, the paramour of such a woman (Mr. Wickham supposed her to be a maid of honor and he a lord of the bedchamber) might aid her in imposing on the king. She is tried, found guilty, and executed. How would her lover be charged? Would he be indicted by the name A.B., Gentleman, or by his title of Lord, for marrying the king, not being an unspotted virgin or, to use the language of the act, “a pure and clean maid”?

“This,” concluded Mr. Wickham, “may seem to be treating the subject with more levity than I could wish to do, but the argument directly applies ... for it is as much a physical impossibility that Colonel Burr should be at Blennerhassett’s Island and in Kentucky (places several hundred miles distant) at the same time, as that an individual should be at the same time a man and a woman.”

Shortly thereafter the court adjourned for the day. No doubt those who had been present retired to their taverns for a spot of brandy and laughed over Mr. Wickham’s merry argument about the maid of honor and the lord of the bedchamber who was made to marry the king in the indictment. No doubt there were some instances where the quick-witted had to repeat the argument and help the slow-witted to see the point of the joke.

Of Richmond’s public establishments for food, refreshment, and shelter for the night none—including even The Eagle—surpassed the Swan Tavern. Standing on Broad Street that separated the Capitol Square and its public buildings from the stylish residential quarter of Shockoe Hill, identified by a sign bearing a white swan on a pale blue background, it was largely favored by the judges of the Court of Appeals and legislators of high rank. Its proprietor, Col. John Moss, was a man of great natural dignity enhanced by starched linen. The Colonel had the reputation for setting an excellent table over which he presided in person. His ham was always prime, his fresh meats the best the market could afford. If any criticism was heard it was only that Colonel Moss was “a nice calculator who aimed to give his guests just enough but no more.” But if his food was the best he ought not to be condemned for seeing that none of it was wasted.

Also reflecting the Swan’s high standards were its wine cellar and its bar. The former was stocked, as the popular expression of the day defined quality, with “the best London Particular.” The bar was a favorite place of assemblage for the lawyers after a hard day in court. It was presided over by one Lovell, a droll fellow whose wit was as dry as his wines and spirits.

It was perhaps not entirely accidental that the house which Colonel Burr was sharing with Luther Martin was situated close to the Swan and its bar. There, when he was not otherwise engaged, Mr. Martin was likely to be found.

On retiring to the Martin house between sessions the Colonel often found Theodosia and little Aaron there. Theo was exercising a careful supervision over the housekeeping and the house was becoming a popular meeting place for Burr sympathizers. Many noticed and remarked that, in spite of his years, old Martin was beginning to exhibit a romantic attachment for Theodosia.

To Blennerhassett, under lock and key at the penitentiary and alone, Burr wrote apologetically: “I am surrounded by visitors, which prevents me from adding more than the assurance of my respect and attachment.”

One emissary between the two accused reported to Blennerhassett that “Burr lives in great style and sees much company within his gratings, where it is as difficult to get an audience as if he were really an emperor.” Another described Burr as being “as cheerful as ever. But as a jockey might restore his fame in the course, after he had injured it on a tight rope, so perhaps the little ‘Emperor’ at Cole’s Creek, may be forgotten in the attorney at Richmond.”

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.

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.

But had not the President of the United States openly declared him guilty? Did not half the people in the United States believe him so, condemning him on the sensational evidence that had been spread by the public press? Was the evidence of General Eaton and Commodore Truxtun and of the lesser witnesses to be dismissed? Mr. Hay had alluded to common sense. Mr. Randolph had sneered. But the prosecution had not yet been heard.