the objection that
his testimony was not yet relevant, contending that in a prosecution
for treason the great material fact on which the merits of the entire
controversy pivots was the overt act, which must be "AN OPEN ACT OF
WAR"; just as in a murder trial the fact of the killing, the corpus
delicti, must be proved before any other testimony was relevant, so in
the pending prosecution, said they, no testimony was admissible until
the overt act had been shown in the manner required by the Constitution.

The task of answering this argument fell to Wirt, who argued, and
apparently with justice, that the prosecution was free to introduce its
evidence in any order it saw fit, provided only that the evidence was
relevant to the issue raised by the indictment, and that if an overt
act was proved "in the course of the whole evidence," that would be
sufficient. The day following the Court read an opinion which is a model
of ambiguous and equivocal statement, but the purport was fairly clear:
for the moment the Court would not interfere, and the prosecution was
free to proceed as it thought best, with the warning that the Damocles
sword of "irrelevancy" was suspended over its head by the barest thread
and might fall at any moment.

For the next two days the legal battle was kept in abeyance while the
taking of testimony went forward. Eaton was followed on the stand by
Commodore Truxton, who stated that in conversation with him Burr had
seemed to be aiming only at an expedition against Mexico. Then came
General Morgan and his two sons who asserted their belief in the
treasonable character of Burr's designs. Finally a series of witnesses,
the majority of them servants of Blennerhassett, testified that on the
evening of December 10, 1806, Burr's forces had assembled on the island.

This line of testimony concluded, the prosecution next indicated its
intention of introducing evidence to show Burr's connection with the
assemblage on the island, when the defense sprang the coup it had been
maturing from the outset. Pointing out the notorious fact that on the
night of the 10th of December Burr had not been present at the island
but had been two hundred miles away in Kentucky, they contended that,
under the Constitution, the assemblage on Blennerhassett's island could
not be regarded as his act, even granting that he had advised it, for,
said they, advising war is one thing but levying it is quite another.
If this interpretation was