Judge Marshall here interposed to remark that it was becoming highly embarrassing to him to be issuing opinions on the admission of evidence before the trial had actually begun. To this Burr replied that if the Chief Justice was embarrassed he would consent to a higher bail. The sum of $10,000 was agreed upon, which put an end to this quite unnecessary sideshow. That is, unnecessary so far as the legal proceedings were concerned. But it had provided an opportunity for the counsel on both sides to posture before the audience and to do their best to influence public opinion for or against the accused according to the side they were on.
The digression did result in setting forth a statement of the fundamental issue that was to be iterated and reiterated during the trial: what was treason? In the course of his argument Mr. Botts outlined the definition of treason as it is set forth in the Constitution.
He stated that treason is either levying war against the United States or else giving aid and comfort to the enemy. But since in the present instance the United States was at peace with the world, giving aid and comfort to the enemy was ruled out.
That left the charge of levying war. But, says the Constitution, there must be an “overt act.” Further that act must be proved by two witnesses, and it must have occurred in the district in which the case was being tried. All of these things, insisted Mr. Botts, had to be proved by the Government against Burr if he was to be found guilty of treason.
Mr. Botts contended further that the first obligation of the prosecution was to prove the overt act. Until that act was proved, no other evidence was admissible.
Nothing would be more damaging to the prosecution than a ruling of the Court sustaining the contention of the defense. The prosecution’s plan was to present the evidence chronologically, introducing all the scheming and plotting that had been common gossip during the past few years, and gradually working up to a climax. Colonel Burr and his counsel touched a tender spot when they challenged this procedure.
At this juncture the defense received valuable reinforcement through the arrival of Luther Martin of Maryland. Mr. Martin was a lawyer of exceptional talent. A native of New Jersey, he had been educated at Princeton from which he graduated with high honors in the class of 1766, six classes ahead of Aaron Burr. At the age of thirty he was Attorney General of Maryland, from which high office he resigned to build up a lucrative practice in Baltimore. Elected a delegate from Maryland to the Constitutional Convention, he showed his courage and his scorn for conformity by defying the powerful Virginia delegation, headed by Washington, and championing the cause of the smaller states. His service in the Convention, valuable as it turned out to be, had more recently been overshadowed by his stalwart defense of Judge Chase in the impeachment proceedings.
Another asset for the business in hand was Mr. Martin’s warm friendship for Burr and his inveterate hatred of Thomas Jefferson. In politics Martin was a Federalist; added to his political differences with the President was a personal grudge resulting from an injury quite unconsciously inflicted by Mr. Jefferson.
Luther Martin married Maria Cresap, a daughter of Col. Michael Cresap, a frontiersman of Allegheny County, Maryland. In his “Notes on Virginia” Jefferson included the eloquent speech of the Indian chieftain Logan, who had befriended the early settlers yet whose wife and children had been butchered by the whites. Jefferson’s purpose in introducing this classic piece of rhetoric was to call attention to the nobility of the red man. He was not aware that responsibility for the murder had been pinned on Colonel Cresap, Martin’s father-in-law. Martin voiced his resentment in a bitter letter to a Philadelphia newspaper, but this public outpouring was not sufficient in itself to erase the grudge he held against Jefferson.
Mr. Martin’s brilliance was offset by an untidy dress, coarseness of speech and manner, and an addiction to spirits that earned him the nickname “Old Brandy Bottle.” His capacity was phenomenal, and though he imbibed freely this did not seem to dull his wit or befuddle his mind. He made his entrance into the lists in Richmond as a foreigner, but, had he wished, he might have claimed kinship with his Virginia colleagues as a former student of Chancellor Wythe in Williamsburg and a member of the Virginia bar practicing briefly on the state’s eastern shore.