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.