On the day following the postponement of his arraignment Harman Blennerhassett received an important visitor in his quarters in the penitentiary. He was William Duane, formerly a partner of Benjamin Franklin and Edward Bache in the publication of the Aurora. Duane was now the fiery editor of that newspaper which he had made into an organ of the Jeffersonian administration.

Duane expressed great sympathy for Blennerhassett. He told him his friends were making a scapegoat of him. Then, according to Blennerhassett, Duane tried to lure him into a confession of having written certain papers then in the hands of the prosecution. But the chief purpose of his visit was to try to persuade Blennerhassett to betray Burr.

This Blennerhassett steadfastly refused to do. And that was strange since he was himself convinced that, as Duane charged, he had been made a scapegoat. Less than a week after Duane’s visit he posted in his diary: “You were right, therefore, honest Hay, on observing the other day to Woodbridge while expressing your concern for my situation ‘that I must now think Burr has duped me,’ but you were wrong in supposing I am indebted to you for that discovery; I am possessed of it these nine months.”

Burr, who had his informants everywhere, was immediately apprised of Duane’s visit and lost no time getting word to Blennerhassett to be on his guard against spies who came to him under the mask of friendship. This precaution was unnecessary. Whatever Blennerhassett may have confided in his diary he was always completely disarmed when he came into the presence of Burr, and even when they were apart he seemed still to feel Burr’s influence.

Blennerhassett’s determination not to turn state’s evidence against the man who had duped him after pretending to be his friend has been attributed to the mildness of his temper or lack of courage. Perhaps each was a factor. However, Blennerhassett was not a bright man. His romance with his niece is evidence of an impetuosity that led him to act without counting the cost. From the time of their first meeting Burr had courted him assiduously, protesting that his vegetating on the island was a fraud on society and holding out brilliant prospects. Blennerhassett would have been easy prey for an even less skillful flatterer. What chance did he have with a man who had duped some of the best minds in the country and once through oratory alone had provoked the Senate of the United States to adoration and tears?

When Court convened on Monday morning MacRae opened for the prosecution and proceeded to live up to his reputation for wielding a meat axe. He was not the least restrained by the consciousness that his remarks were being made in the presence of, and only a few feet away from, Aaron Burr.

The prisoner, he charged, had with unexampled dexterity contrived from the very beginning to quit his situation as the accused. Instead of Aaron Burr defending himself he was found taking the high ground of public accuser and assailing others.

Mr. MacRae charged that Wilkinson, whom he called “the savior of his country,” and who had prevented the execution of this detestable plot, had incurred the hatred and resentment of the prisoner and his associates in proportion as he deserved well of his fellow citizens. Let others question General Wilkinson’s integrity. Mr. MacRae would not do so, at least not in open court. In MacRae’s language Wilkinson was “the patriotic and meritorious officer (like those who opposed and overthrew Cataline, the Roman conspirator) who defeated this daring scheme against American liberty.” He would not be forgiven by the conspirators.

“If he [Burr] be innocent and pure as the child unborn,” sneered Mr. MacRae, “if he knew nothing of the transaction, why is it that this motion is made to exclude the evidence?”

What though the prisoner was not on Blennerhassett Island when the overt act was committed? The speaker contended that nevertheless he was guilty if anybody was guilty.

“Is there,” he asked, “any human being who having heard the evidence of General Eaton ... the evidence of the Messrs. Morgan and the evidence of the witnesses who speak of the overt act on the island, especially Jacob Allbright and Peter Taylor, who can doubt his guilt?”

Mr. MacRae professed he could not see why it should be necessary for Colonel Burr to be on the island if he enlisted the men, and sent them to the place, and acted himself in another place. Nor would he bring up the cases of Lady Lisle and Elizabeth Gaunt who had been mentioned by Mr. Wickham. Why should he? These women were accessories after the fact. But Mr. Burr had never been regarded as an accessory. He was the first mover of the plot; he planned it; he matured it; he contrived the doing of the overt acts which others did. Burr, charged MacRae, was the alpha and omega of this treasonable scheme, the very body and soul, the very life of this treason!

So, observed Mr. MacRae, Mr. Wickham had said the prosecution must prove that the accused was personally present. “No, Sir,” he objected, “it is necessary to prove that some act laid has been committed.... If the law pronounce that he is liable for the acts of his agents, and if the fact be that his agents by his commands and at his request committed the act, where is the necessity of producing proof that he was on the spot himself?”

Counsel for defense had complained of construction. “Our construction we think correct,” said Mr. MacRae, “because it is calculated to secure the rights of the citizen and to render the government permanent; whereas if the construction of the gentlemen on the other side be correct, the government cannot be permanent. Let them have the power of ubiquity. The conspirators will always contrive to avail themselves of this plea that they were not present.”

Mr. MacRae turned to the Old Testament to support his argument. He used the story of David and Uriah to illustrate it, confident that it was well known to all the members of the jury in an age when everybody read the Bible. David, he recalled, placed Uriah in the front of the battle in opposition to a very powerful opponent in order that he might be slain and that David might afterwards take his wife. If people were asked who killed Uriah, David or the antagonist by whose sword Uriah fell, the answer of all would be that—having placed him in the front of the battle in a place of the greatest danger, in immediate opposition to a man of great strength and power, with the intention that he should be killed—David killed him.

The speaker now applied the principle to the case before the court: “We suppose the prisoner, by himself and agents, to have been acting at or about the same time at Beaver, Kentucky, and Blennerhassett’s Island. We suppose that the prisoner enlisted men before he came to Beaver and at it. We suppose that afterwards his men proceeded by his orders to Blennerhassett’s Island and were there increasing their numbers by more enlistments and providing the means of transporting his troops down the river towards the scene of his expedition, while he was himself enlisting more men in Kentucky and making arrangements preparatory to his meeting and assuming the command of the whole at the mouth of the Cumberland; and that in fact, pursuant to this plan of operations, he did meet and take the command of all the conspirators at the latter place.”

Were there precedents in the law to sustain this argument? Mr. MacRae cited the case mentioned in Hale’s Pleas of the Crown of the Lord Dacre and divers others who came to steal deer in the park of one Pelham. Rayden, one of the company, killed the keeper of the park, the Lord Dacre and the rest of the company being in other parts of the park. Yet it was held that it was murder in them all and they died for it. And, said Mr. MacRae, there was American authority, too. He cited Dallas’s Reports and the case of the United States against Mitchell in the Whiskey Rebellion in which Judge Patterson’s charge to the jury showed that a man did not have to be present at the overt act.

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?

The speaker then proceeded to deal facetiously with Wickham’s erudition. The latter, he reminded, had invited them to consider the subject abstractly. But would there not be danger in that? While they were mooting points, pursuing ingenious hypotheses, chasing elementary principles over the wide extended plains and Alpine heights of abstracted law, was there not danger that they would lose sight of the great question before the Court?

The motion before the Court, Mr. Wirt agreed, was a bold and original stroke in the noble science of defense. It marked the genius and hand of a master. For, said he, it gave the prisoner every possible advantage. Yet at the same time it cut off from the prosecution all the evidence which went to connect the prisoner with the assemblage on the island, to explain the destination and objects of the assemblage, and to stamp beyond controversy the character of treason upon it.

If, asked Mr. Wirt, the views of the prisoner were, as they had been so often represented by one of his counsel, highly honorable to himself and glorious to his country, why not permit the evidence to disclose those views?

“No, Sir,” he protested, “it is not squeamish modesty. It is no fastidious delicacy that prompts these repeated efforts to keep back the evidence. It is apprehension! It is alarm! It is fear, or rather the certainty, that the evidence whenever it shall come forward will fix the charge.”

And now Mr. Wirt, with the instinct of a good showman, was reminded that he was speaking to an audience of men and must season his discourse with a little spice. “I will not,” he asserted, “follow the example which he [Mr. Wickham] has set me on a very recent occasion.... I will not, like him, in reply to an argument as naked as a sleeping Venus—but certainly not half so beautiful—complain of the painful necessity I am under, in the weakness and decrepitude of logical vigor, of lifting first this flounce and then that furbelow, before I can reach the wished for point of attack.” Mr. Wirt’s metaphor must at least have provoked smiles from the audience, if not downright laughter.

On the contrary, said Mr. Wirt, he would endeavor to meet the gentleman’s propositions in their full force and to answer them fairly. He would not, as Mr. Wickham had done, as he was advancing toward them with his mind’s eye, measure the height, breadth and power of the proposition; if he found it beyond his strength, halve it; if it still was beyond his strength, quarter it; if still necessary, subdivide it into eighths; and when, by this process, he had reduced it to the proper standard, take one of those sections and toss it with an air of elephantine strength and superiority.

Mr. Wirt would not, in commenting on the gentleman’s authorities, thank the gentleman with sarcastic politeness for introducing them, declare that they conclude directly against him, read just so much of the authority as serves the purpose of that declaration, omitting that which contained the true point of the case which was made against him. Nor, if forced by a direct call to read that part also, would he content himself with running over it as rapidly and inarticulately as he could, throw down the book with a theatrical air and exclaim “Just as I said,” when he knew it was just as he had not said.

Having thus performed this little exercise in satire at Mr. Wickham’s expense, Mr. Wirt got down to the case in point. He noted that Mr. Wickham had read the Constitutional definition of treason and given the rule by which it was to be interpreted. After he had done that it would have been natural for him to proceed directly to apply that rule to the definition and give the result.

But no. Even while they had their eyes on the gentleman he vanished like a spirit from American ground and was seen no more until he turned up in England, “resurging by a kind of intellectual magic in the middle of the 16th century, complaining most dolefully of my Lord Coke’s bowels.”

“Before we follow him in this excursion,” proposed the speaker, “it may be well to inquire what it was that induced him to leave the regular track of his argument. I will tell you what it was. It was, Sir, the decision of the Supreme Court in the case of Bollman and Swartwout.... Sir, if the gentleman had believed this decision to be favorable to him, we should have heard of it in the beginning of his argument.”

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.”

Let the Chief Justice be secretly amused. Mr. Wirt was not going to deny himself the superb opportunity of holding his audience spellbound with his oratorical gifts. “But he carried with him taste and science and wealth; and lo, the desert smiled!

“Possessing himself of a beautiful island in the Ohio, he rears upon it a palace and decorates it with every romantic embellishment of fancy. A shrubbery that Shenstone might have envied, blooms around him! An extensive library spreads its treasures before him. A philosophical apparatus offers to him all the secrets and mysteries of nature. Peace, tranquillity and innocence shed their mingled delights around him.

“And to crown the enchantment of the scene, a wife, who is said to be lovely even beyond her sex and graced with every accomplishment that can render it irresistible, had blessed him with her love and made him the father of several children. The evidence would convince you that this is but a faint picture of the real life.”

The speaker’s countenance changed from joy to distress and his voice assumed a solemn tone. “In the midst of all this peace, this innocent simplicity and this tranquillity; this feast of the mind, this pure banquet of the heart, the destroyer comes. He comes to change this paradise into a hell. Yet the flowers do not wither at his approach. No monitory shuddering through the bosom of their unfortunate possessor warns him of the ruin that is coming upon him.

“A stranger presents himself. Introduced to their civilities by the high rank which he had lately held in this country, he soon finds his way to their hearts, by the dignity and elegance of his demeanor, the light and beauty of his conversation and the seductive and fascinating power of his address. The conquest was not difficult. Innocence is ever simple and credulous. Conscious of no design itself, it suspects none in others. It wears no guard before its breast. Every door and portal and avenue of the heart is thrown open, and all who choose it enter.

“Such was the state of Eden when the serpent entered its bowers. The prisoner, in a more engaging form, winding himself into the open and unpracticed heart of the unfortunate Blennerhassett, found but little difficulty in changing the native character of that heart and the objects of its affection. By degrees he infuses into it the poison of his own ambition. He breathes into it the fire of his own courage; a daring and desperate thirst for glory; an ardor panting for great enterprises, for all the storm and bustle and hurricane of life.

“In a short time the whole man is changed, and every object of his former delight is relinquished. No more he enjoys the tranquil scene. It has become flat and insipid to his taste. His books are abandoned. His retort and crucible are thrown aside. His shrubbery blooms and breathes its fragrance upon the air in vain; he likes it not. His ear no longer drinks in the rich melody of music; it longs for the trumpet’s clangor and the cannon’s roar. Even the prattle of babes, once so sweet, no longer affects him; and the angel smile of his wife which hitherto touched his bosom with ecstasy so unspeakable, is now unseen and unfelt.

“Greater objects have taken possession of his soul. His imagination has been dazzled by visions of diadems, of stars and garters and titles of nobility. He has been taught to burn with restless emulation at the names of great heroes and conquerors. His enchanted island is destined soon to relapse into a wilderness; and in a few months we find the beautiful and tender partner of his bosom, whom he lately permitted not the winds of summer ‘to visit too roughly,’ we find her shivering at midnight, on the winter banks of the Ohio and mingling her tears with the torrents that froze as they fell.

“Yet this unfortunate man, thus deluded from his interest and his happiness, thus seduced from the paths of innocence and peace; thus confounded in the toils that were deliberately spread for him, and overwhelmed by the mastering spirit and genius of another—this man, thus ruined and undone and made to play a subordinate part in this grand drama of guilt and treason—this man is to be called the principal offender, while he, by whom he was plunged into misery, is comparatively innocent, a mere accessory. Is this reason? Is it law? Is it humanity? Sir, neither the human heart nor the human understanding will bear a perversion so monstrous and so absurd! So shocking to the soul! So revolting to the reason!”

Thus ended Wirt’s classic accusation of Burr. The time remaining to the speaker was devoted to a prosaic discussion of bellum levatum as distinguished from bellum percussum. Gentlemen on the other side, said Mr. Wirt, asked for battles, bloody battles, hard knocks, the noise of cannon. But there was none. There did not have to be. The Constitution said “levying war,” not “making war.” He had recourse to his dictionary to show that the word “levy” means “to raise.” So there needed to be no force. The word force was used figuratively merely to signify the assembled body and not any deed of violence.

Nevertheless, if the defense insisted upon force, did not the assemblage on Blennerhassett Island exert a species of potential force on the surrounding country? Did not Comfort Tyler and his party put that country into a state of consternation? What urged the state government of Ohio to send a body of men to take that party and seize its boats? What induced the State Legislature to deliberate with closed doors? What caused the militia of Wood County, Virginia, to be put in motion and marched to the island? The speaker traced the wave of alarm as it moved from the island southward all the way to New Orleans.

The day was almost spent when, with a sigh of weariness, Mr. Wirt announced that he had finished what he had to say. He begged pardon for consuming the time of the Court so long. He thanked it for its patience and polite attention. He pleaded that he was much too exhausted to recapitulate his argument. But to such a Court as that of the Chief Justice’s he was sure that was unnecessary.

After his masterly effort Mr. Wirt would not have been human had he not felt a glow of satisfaction over his performance. Even those on the other side must have conceded that he had more than earned his fee. All that came after the portrayal of the relationship between Blennerhassett and Burr was anticlimax. That passage, duly recorded by Mr. Robertson, found its way into books of elocution and became one of the most popular pieces of literature to memorize and declaim. The Chief Justice was kind enough to remark that he had been greatly impressed by the speaker’s eloquence. What effect it had on the members of the jury for whose consumption it was chiefly intended only they could say, and they left behind them no record of their reactions.

There was also the effect on the prisoner whose misdeeds had been so vividly described. The Colonel sat through it all calmly, but with his alert mind he took in every word of it. It is said that in later years he entertained himself and his friends by reciting the more florid passages and that his performance seldom failed to be rewarded with peals of derisive laughter.