Wirt’s argument had consumed the better part of the day, but there still was a little time left before the regular hour for adjournment. Two of the lawyers for the prosecution having held the floor in succession it was again the turn of the defense.

Of Colonel Burr’s lawyers none was better equipped by temperament to counterbalance William Wirt than was Benjamin Botts. He, too, could boast the vigor and abandon of youth. In fact he was the youngest of all the array of legal talent which had been attracted to the case. He was distinguished for his wit and he was a master of ridicule, for which Mr. Wirt’s florid oratory made an excellent target. As Wirt had set out after Wickham in his opening remarks, so young Botts turned his guns on Wirt.

“I cannot promise you, Sir, a speech manufactured out of tropes and figures,” he began with mock apology. Then, alluding to Wirt’s reference to “an argument as naked as a sleeping Venus,” he continued: “Instead of the introduction of a sleeping Venus, with all the luxury of voluptuous and wanton nakedness to charm the reason through the refined medium of sensuality, and to convince us that the law of treason is with the Prosecution by leading our imaginations to the fascinating richness and symmetry of a heaving bosom and luscious waist, I am compelled to plod heavily and meekly on through the dull doctrines of Hale and Foster.” Mr. Botts, too, was not without skill in playing up to the gross humor of an all-male audience.

“So far though from reproving the gentleman’s excitement of the boiling blood of such of us as are in the heyday of youth, without the previous caution of clearing the hall of those whose once panting desires have been chilled by age, and upon whom the forced ecstasy sat unnaturally and uneasy, I only lament my utter incapacity to elicit topics of legal science by an imitation of so novel and tempting an example. Nothing but the impossibility of success would prevent me also from grasping at the fame and glory on this grave occasion, and at this time of pleasure, of enriching the leering lasciviousness of a like bewildering thought to transport anew the old and the young.”

In such manner Mr. Botts soon put the assemblage in good humor. Even the Chief Justice, who enjoyed a joke as much as the next man, must have joined in the fun. Having thus ingratiated himself with his audience by this gay introduction he proceeded to present his serious argument. His first proposition he told them would be to endeavor to establish the fact in support of the motion that the acts proved to have taken place on Blennerhassett Island were not in themselves acts of war and that no intention could make them acts of war.

What had actually happened? According to Mr. Botts about thirty men had landed on the island and remained there for two or three days. It is true, they had some arms and ammunition. They guarded their property at the boats. They prepared provisions to take with them down the river. At a place contiguous to the island it was admitted they had killed some squirrels. As notable a circumstance as any in this overt act was that they had had what one of the witnesses called “a watchword.” All but Blennerhassett and Tyler were confessedly ignorant of the plan. They got alarmed on hearing the report of a mob and fled secretly in the night after Comfort Tyler had declared his purpose not to resist constituted authorities.

Now, said Mr. Botts, the proposition of the opposing side was that these were acts of war, that they were intended first against the people of Wood County, Virginia, in which the island was situated, and then against New Orleans. He would suppose first that the acts were against Wood County. Very well, then, the boats, the oars, the provisions for a long journey, the after-descent of the river were overt acts of levying war against Wood County.

“But, Sir, the party was armed!” he exclaimed, imitating the manner of the prosecution. Why? Mr. Botts contended that it showed they were expecting the people of Wood County would attack them. In other words Mr. Botts apprehended that the people of Wood County meditated war on the people of the island, not that the islanders meditated war against the people of Wood County.

Then, continued Mr. Botts, it was found that the people of the island had fled silently in the night from those of Wood County. And because they fled, it seems they were guilty of acts of war!

On the other hand, said Mr. Botts, pursuing his argument, “if the war was not against Wood County it was against New Orleans. And New Orleans was 2200 miles away!”

In the same playful mood, Mr. Botts suggested that the defendant might claim that these persons had no arms, or if they had guns that they were not long enough to shoot all the way from the island to New Orleans. He presumed that the reply the prosecution would make to that was that no arms were necessary, that they might make war with their fingers. Or the defendant might urge that persons in this country have a right to carry arms, that it is also conformable to usage for people going down the river to kill ducks and other such game.

“The prosecutor,” Mr. Botts presumed, “would answer that arms are not necessary; that they had three or four guns, a little powder and shot even to kill fowls and ten or twelve boats; that it was a most bloody war indeed; that without arms it would be war, but with these arms it was a most dangerous war against the United States!”

If this was making war against the United States, declared Mr. Botts, then “If I run away and hide to avoid a beating, I am guilty and may be convicted of assault and battery!” Here Mr. Botts suggested the propriety of adjourning. When Court met next morning and Mr. Botts resumed his argument he was in the same facetious mood. Once more he went back to the charge of levying war and recalled the failure of the grand juries in Mississippi and Kentucky to indict.

“The Mississippi Territory and Kentucky, as we are informed, were the seat of war,” he observed. “But the simpletons of that State and Territory hunted but could not find the war. They were so stupid as not to perceive in a collection of men without arms, without any possible means of annoyance, without any hostile disposition and without the possibility of getting away their women and families, anything criminal, much less any aptitude to overturn two mighty empires.

“It remained for us, the proud members of the Virginia bar, to come out and astonish the world with the profundity of our learning in matters of war. They have ascertained that there was a terrible war. I ask you what manner of war was it? We have had a much more serious war here than on the island. We have had here a carnage of breaths, sour looks and hard words and the roaring of vocal cannon. We have had a battle with the laws and the Constitution fought courageously and furiously by our enemy.

“Is it not a mockery to speak of the war on Blennerhassett’s Island? Shall we not be the sport of Europe and the world by such a discussion?”

In spite of the nation’s independence, which it now had enjoyed for a matter of more than thirty years, the Virginia bar still did obeisance to that of England. Though Burke had died in 1797 and Charles James Fox and the younger Pitt had gone to join their fathers within the year, counsel in the Burr case transferred their veneration to their successors in Westminster. They seemed to have imagined fatuously that this spirit of camaraderie was reciprocated and that the great men of England had temporarily put aside the affairs of empire to follow every move being made by opposing counsel in the hall of the Virginia House of Delegates in Richmond.

Now, continued Mr. Botts, Mr. Hay had said that constructive treason in this country would not be dangerous. Mr. Botts would suppose an imaginary case. He would suppose there had been well-grounded apprehension of an approaching war with a neighboring and powerful nation. He would suppose that the United States had a feeble army in the neighborhood of the boundary line between the two countries, and that the American general had orders to fall back. Mr. Botts, be it noted, was as good at making hypothetical cases for the defense as was Mr. Wirt for the prosecution.

He would suppose that the populous rich city of New Orleans was in danger of invasion. He would suppose that a hero distinguished for military science and valor and as patriotic as he was ambitious of honorable fame—but whose good name was blighted and blasted by the malice of his countrymen—should have seen the dangers hanging over his country: New Orleans threatened with invasion and conquest by a Spanish force, the citizens there in danger of murder and captivity, their wives and daughters ready to be a prey to Spanish lust, and all else in that favored country exposed to desolation.

He would suppose that the hero knew that a band of faithful patriots could be collected immediately around his standard. He would suppose that with this band of patriots the hero should at this fortunate and critical moment have rescued the country, the army, the people, by a reasonable relief to the decrepit and half baffled forces of the United States. He would suppose that in the same magnanimous spirit the hero should after this have gone on his enterprise to establish the independence of the Mexicans and give liberty to millions now groaning under bondage.

Suppose he had done all this: he would have acquired immortal glory and be renowned in future ages as the deliverer of his country, worshiped as its idol and called its savior as Washington was.

Thus Mr. Botts artfully contrived to present the character of Aaron Burr as his defenders chose to imagine it. The defense scored the prosecution for trying to introduce constructive treason into the United States. It did not object to introducing constructive heroism, provided the hero was Colonel Burr. The Colonel laughed at William Wirt’s extravagant language. Is it not possible that he stifled a cynical smile as he heard himself thus being glorified by young Botts?

Mr. Botts’s supposing ended, he next described in heart-rending language the manner in which the well-meaning and patriotic Colonel had been basely betrayed and thwarted. In what some might have considered not too good taste he recalled that Christ himself had been abused, mocked, and spit upon. Why then should not a mere mortal man be in like manner abused?

The young champion next raised his lance against the President of the United States. He charged that Mr. Jefferson’s interference with the prosecution of the case was improper, illegal, and unconstitutional. He had no doubt, he said, that the President had acted from good intentions, without sufficiently reflecting on the subject, and that he was inadvertently following one of the very worst English examples in the most arbitrary reigns. He wished Mr. Jefferson could be at his side now to hear what could be said on the subject. Young Mr. Botts was sufficiently sure of his powers of persuasion to believe that under those circumstances Mr. Jefferson would be convinced that he had done wrong.

Then Mr. Botts came to his concluding peroration. “We are told,” he said, “that the virtue of the people will do everything; that the voice of the people must be heard and must decide where they are sovereign; that the voice of the people is the voice of God; and that a majority of the people must always do right....

“I hope the gentlemen ... will not refer the fate of individuals accused to the sudden and violent impulse of their feelings and passions.... There are cases where individuals have been sacrificed by the voice of the people. Socrates was made to drink the hemlock, and Aristides was banished by the people.... Admiral Byng was made to die for the same cause. Jefferson was run down in the year 1780 by the voice of the people.” Mr. Botts’s reference here was to the unpopularity of Mr. Jefferson during the Revolution when he was Governor of Virginia and the state was invaded by the British and complaints of Mr. Jefferson’s ineffectiveness in meeting the crisis raised murmurs for his impeachment.

After that Mr. Botts was back again appealing to Holy Writ to drive home his point: “Reformation and Christianity itself prove the general errors subject to pervade the people. Jesus Christ himself was crucified by the people.”

On this sacred note Mr. Botts closed his discourse. He had proved himself to be as entertaining as any of his elder brethren of the bar.

The industrious Mr. Robertson rendered yeoman service in recording the lengthy and often tedious proceedings. Even he was beginning to tire. He concluded it was not necessary to set down all that was said. Instead he contented himself with making the entry, “here some facetious and pleasant remarks passed between Mr. Botts and Mr. MacRae; which afforded amusement for the moment, but are omitted as irrelevant to the report.” Irrelevant? Who knows but that if Mr. Robertson had recorded the facetious and pleasant remarks that Mr. MacRae made in his exchange with Mr. Botts, Mr. MacRae might have been spared the ignominy of going down to posterity as a sour Scotsman.

Soon after there appeared the entry: “Here a desultory conversation ensued between Mr. Botts and Mr. Wirt in which some warm and animated observations were made respecting the evidence, and Mr. Wirt’s comments thereon.” Had Mr. Botts’s ridicule got under Mr. Wirt’s skin? At this point the Chief Justice poured oil on the troubled waters by remarking that the evidence was such that different gentlemen might draw different inferences from it.

After Botts came the District Attorney’s turn again. “I cannot,” he confessed with his customary modesty, “instruct you by my learning, amuse you by my wit, make you laugh by my drollery nor delight you with my eloquence. All I can do is to express to you in plain language the convictions perhaps of a mistaken judgment.” Here was no mock humility, but the sincere outpouring of a spirit oppressed by the knowledge that among his colleagues of the Richmond bar he was labeled as a mediocrity. Hay would have been even duller of wit than public opinion made him out to be if he had not noted the special consideration assigned to such of his contemporaries as Wickham, Botts, and Wirt. He could have consoled himself with the reflection that in such an assemblage humility was a rare and welcome virtue.

Mr. Hay had no sooner fairly begun on his discourse than he made an allusion to Justice Samuel Chase and his conduct in the Fries case in which he had strained the law to convict for the Government. The censure the judge brought on himself, observed Mr. Hay, was not on account of his opinions but for his arbitrary and irregular conduct at the trial. Chase, he reminded, attempted to wrest the decision from the jury and prejudge the case before hearing all the evidence in it. It was, said Mr. Hay, the identical thing this Court was being called on to do by the gentlemen of the defense. At this the gentlemen of the defense pricked up their ears. Mr. Hay was to hear from them later.

The remark about Justice Chase was preliminary to a dissertation on the institution of trial by jury. “If,” Hay averred, “it ever shall be determined by this Court that it has it in its power to take the decision of facts from the jury, the trial by jury, one of the greatest bulwarks of civil liberty, may be struck down and destroyed.”

The great question at issue in this case, he said, was compounded of law and of fact, of which latter the jury were the judges. Therefore every allegation which related to the indictment, all the evidence relating to and bearing on the issue, ought to be brought forward and heard by the jury. The prosecution held that Colonel Burr was guilty of levying war against the United States. Colonel Burr said he was not. The evidence the defense sought to exclude bore directly on the point at issue. Mr. Hay expressed himself as positive the framers of the Constitution never intended to take the decision of the general issue in a criminal case away from the consideration of the jury and give it to the judge.

The speaker paused for an impressive moment and then, selecting his words with care, addressed the bench: “I consider this principle of the trial by jury, preserved in its uttermost purity and independence, as connected with the best principles of the human heart. It ought to be viewed and approached with the utmost reverence and caution; and when a judge is called to do what may lead him to encroach on this principle, he will advance with the utmost circumspection and awe. I will take the liberty to say that it will be far more safe and correct to remain a thousand miles on this side of the line which separates the rights of the Jury from those of the Court, than to go a hair’s breadth beyond it; and if he should encroach he ought for no human consideration to touch it. If ever he do, he undermines civil liberty.” That short dissertation on trial by jury must have made some of those present wonder if they had misjudged when they wrote George Hay off as a mediocrity.

The District Attorney returned to the old question of whether actual presence of the accused at the scene of the overt act was necessary to sustain a charge of treason. Suppose, he said, Colonel Burr had never been on the spot where the overt act was committed. Suppose he knew his men were there and about to be attacked. Suppose he sent more men there to help them, along with arms, ammunition, and provisions and all other things necessary for their defense. Suppose an attack was made and repelled and thousands fell in the battle. Would it be contended by the gentlemen of the defense that Aaron Burr, not having been personally present when this overt act of his procurement was committed, was not a principal but an accessory? That his soldiers were principals in treason, but he was not? To prove the fallacy Mr. Hay proposed that they look at the result. He is innocent and safe. They are guilty and punished.

“Is it possible,” he asked, “that the human mind can be so perplexed by learning and so misled by ingenuity, so totally bereaved of all its powers, as to adopt a conclusion like this?”

Mr. Hay closed his argument by reverting to Mr. Wickham’s expressed fear that the doctrine the prosecution asked the Court to sanction would be fatal to the liberty and happiness of the people of the United States. He pictured Mr. Wickham trembling for his country, himself, and his posterity lest the prosecution succeed.

“I too am a citizen of this country,” he declared, “and the father of children for whose happiness and welfare I feel a solicitude as lively and affectionate as any parent can feel. To the true happiness of my country I hope I know that I am sincerely and ardently attached. But I see no danger. I apprehend none for myself or my posterity. I am perfectly willing to risk my own life, liberty and happiness, and those of my posterity on the propriety of the principles which we recommend. Let them avoid traitorous conspiracies and designs fatal to the liberty and happiness of their fellow citizens; let them avoid traitorous assemblies, overt acts of war, and they will be safe.”

Thus concluded Mr. Hay. Next on the list of pleaders was Luther Martin, but he sent word to the Court that he was not ready. So Mr. Charles Lee, of the defense, arose to fill the breech. It was one of the rare occasions when he was recorded as having spoken.

Counsel for the defense had been waiting impatiently for a chance to pounce on the District Attorney from the moment he brought up Justice Chase and the Fries case. Now Mr. Lee had that agreeable opportunity.

“The gentleman said in substance there was no difference between the opinion which we desire you to give and that for which Judge Chase was impeached,” charged Mr. Lee, addressing the Chief Justice. “It was very kind of the gentleman to remind the Court of the danger of a decision of the motion in favor of the prisoner, a decision like that which has already produced the impeachment of another judge.”

Mr. Lee knew full well he was touching a tender spot. By thus accusing the District Attorney he was acting on the popular belief among Judge Marshall’s friends that the Chief Justice was himself as much on trial as was the prisoner at the bar. Mr. Hay was prompt to do what he could to counteract that impression. “The cases are different,” he replied. “What I said was only said to put Mr. Botts right in his misrepresentation. It was innocently said and compatible with the highest respect for the Court, not with the design which the gentleman (I will not say candidly) insinuates.”

Here the Chief Justice intervened. “I did not consider you as making any personal allusion, but as merely referring to the law,” he assured Mr. Hay. Thus, with an exhibition of his customary common sense, Judge Marshall graciously accepted Mr. Hay’s explanation, whatever his innermost thoughts might have been.

Mr. Lee, however, persisted. “The gentleman plainly insinuated the possibility of danger to the Court from a favorable opinion to the prisoner,” he protested, “because he said that the opinion which we claimed for him was the same in substance as had occasioned the impeachment of one judge already. It certainly would not be unfair to infer that it was intended to show that the same cause might again produce the same effect.”

Colonel Burr’s urgent request that the trial be expedited seemed doomed to failure. Mr. Lee, having been less long-winded than his colleagues, completed his argument some time before the hour of adjournment. The proposal was made to send a messenger to summon Mr. Martin whose appearance was next on the agenda. But the lawyers of the defense who were present declined to do so, stating again that Mr. Martin was not yet ready. The Court therefore adjourned for the day.

It was not until Friday morning, August 28, that Mr. Martin at last made his entry and rose to address the Court. In speech and appearance he was coarse and crude. Toward his enemies he could be vindictive, as he already had shown in the previous proceedings of the trial. His emotions were as violently stirred in behalf of those he called his friends. On the other hand no one surpassed him in his knowledge of the law and in the application of that knowledge to whatever case he might be pleading.

At the moment Colonel Burr enjoyed his complete loyalty. And since his introduction to her a few weeks before he had developed a consuming admiration for Theodosia Alston. Now came the supreme opportunity to serve them both.

Mr. Martin opened his address with an expression of regret that the artifices and persecutions of his enemies had placed Colonel Burr in his present predicament. But, he continued: “I shall ever feel the sincerest gratitude to Heaven, that my life has been preserved to this time, and that I am enabled to appear before this Court in his defense.

“And if the efforts of these highly respectable and eminent gentlemen with whom I have the honor to be associated, united with my feeble aid, be successful in rescuing a gentleman for whom I with pleasure avow my friendship and esteem, from the fangs of his persecutors—if our joint efforts shall be successful in wiping away the tears of filial piety, in healing the deep wounds inflicted on the breast of the child, by the envenomed shafts of hatred and malice hurled at the heart of the father—if our efforts shall succeed in preserving youth, innocence, elegance and merit from despair, from distraction—it will be to me the greatest pleasure. What dear delight will my heart enjoy. How ineffable, how supreme will be my blessing.”

The solicitude of the elderly gentleman for the prisoner’s daughter was not lost on his audience. The old and kindly disposed no doubt heard them and were touched. The young and cynical were amused that the old man’s infatuation for the beautiful young matron was capable of producing such eloquence. It was one of the current jokes of the town.

However, pursued the speaker, private friendship for the accused and his connections was not his only inducement. He was as well thankful to Heaven that when a question as to the right construction of the principles of treason was to be decided—on which the happiness or misery of the present and future ages depended—he was to have an opportunity to exert to the utmost his feeble talents in opposing principles which he considered so destructive as those advanced on the present occasion. If he and his colleagues, said Mr. Martin, were able to satisfy the Court that the principles the reverse of those contended for on the part of the prosecution ought to be established, he would think he had not lived in vain.

Mr. Martin took pains to make it clear that neither Colonel Burr nor his counsel had ever admitted or suggested that Harman Blennerhassett was guilty of treason. What then was the propriety of Mr. Wirt saying that they were willing to sacrifice him, and that he might be hanged without pity or remorse on their part?

Mr. Martin then brought to bear all the wisdom acquired during his thirty-six years at the bar. He referred to Hale and Hawkins. He recalled the Statute of 39 Elizabeth Cap. 15, wherein A and B both consented to enter a house to rob and only A entered and B stood by, wherefore A was “ousted of his clergy” while B still had it. He cited the case of Pudsey in 1 Hale 534 to show how it came within the general principles of the cases of constructive presence as stated in Foster 349.

He, too, mentioned the case of My Lord Dacre who came with a band of men to steal deer in the park of one Pelham. And he noted that Hawkins, in his second volume, Chapter 9, section viii, page 442, also explained very clearly the principle of constructive presence. He admitted that in Great Britain there was a species of treason which consisted in the intention without any act consummating the guilt of treason. He meant, of course, compassing the death of the king when the crime was only imagined. But in America, since there was no king, there were only two species of treason, which were levying war against the United States or adhering to their enemies, giving them aid and comfort.

“Sir,” he exclaimed, “I execrate a contrary doctrine as highly tyrannical and oppressive. And here I beg leave to enter my censure against the decisions of the court in Pennsylvania on this subject in the cases of what are called the Whiskey and the Hot Water Insurrections.”

Having thus abruptly paid his compliments to the American judges with whose decisions he differed he went back across the sea to England and John Wedderbourn’s case and Deacon’s case and that of the king versus Captain Vaughan, who went aboard a vessel called the Loyal Clencartie in the service of the French king to cruise against the subjects of the English king. As he expounded the law in this masterly fashion how could he have failed to bring a blush to the cheek of Mr. Ritchie of the Enquirer who had used his columns to belittle Luther Martin and scoff at the absurdity of importing a Maryland lawyer to try a case in a Virginia court.

It was gossiped that during the preparation for his appearance Mr. Martin had drunk even more freely than was his usual custom. If so the indulgence had done nothing to befuddle his brain or dim his memory of precedents. Next he turned to the incident of Lord Balmerino entering the gates of Carlisle and holding the city for the Pretender. He cited other allegedly treasonable acts having to do with the efforts of the Stuarts to regain their throne. This was a fruitful field for English precedents for acts of treason. But, he contended, those who had levied war in Perth were charged with levying it in Perth. So, too, were those who levied war in Aberdeen charged with levying it in Aberdeen. He could find no case in which a person was charged with levying war in a place where he was not present.

“But,” he observed, “if the counsel for the Crown in Great Britain had found out this new doctrine discovered by the ingenuity of the counsel for this prosecution, prosecutions would have been easily conducted and much trouble saved. If this new doctrine be as the gentlemen effect to believe, unanswerably correct, then it shows incontrovertibly great ignorance on the part of the lawyers who prosecuted in Great Britain in encountering so much unnecessary trouble and adopting a mode of prosecution so difficult as they did, and the superior ingenuity of the gentlemen in discovering this very easy and plain mode.”

Then Mr. Martin was off after Nicholas Throgmorton, following his case with allusions to the cases of Alice Lisle and Mary Speke, who were so despitefully treated by Judge Jefferies of the Bloody Assizes. He delved into the eighteenth year of the reign of King Edward I to bring forth the case of Bago de Clare to whose house one John Wallis, a clerk, brought a letter of citation from the Archbishop of Canterbury, and some of de Clare’s family forced Wallis to eat the process and wax seal affixed thereto. And de Clare pleaded that he was not required to answer the suit brought against him until the principal actors had been convicted. So he was released on bail to answer after the principals had been convicted. From which incident, which had happened more than five centuries before, Mr. Martin sought to prove that in the State of Virginia in the year of Our Lord 1807, Colonel Burr could not legally be brought to trial until Harman Blennerhassett had been tried and convicted. If Mr. Botts’s allusion to the Crucifixion and Mr. MacRae’s use of Uriah’s death through the connivance of David are excepted, Mr. Martin deserved the prize for going farthest back into history for a precedent.

The speaker had occupied the time of the Court for the entire day and the hour was growing late. When asked if he could finish his argument that evening he replied that he could not. So the Court was adjourned until the usual hour on the morrow and judge, jury, learned counsel, prisoner, witnesses, and spectators drew a sigh of relief and went off to refresh themselves and enjoy as much of a night’s rest as the hot, humid atmosphere permitted.

When Court reconvened on Saturday morning, August 29, Mr. Martin resumed his argument. Here he gave his attention to the opinion in the case of Bollman and Swartwout. He brought out that when the opinion was given only four of the seven judges of the Supreme Court were sitting. Would four judges in an extrajudicial manner have undertaken to settle the construction of the law so infinitely important to the United States? Would they have decided so important a question in a collateral, irregular manner on a point not immediately before them? And that also without the aid of the other three judges?

Even if they had done so, contended Mr. Martin, their decision “certainly deserves no credit as binding on this Court. As a binding judicial opinion it ought to have no more weight than the ballad or song of Chevy Chase.”

Mr. Martin alluded to Mr. Hay’s statement “with great zeal and pathos, that he pledged his own and the life of his children and posterity, on the propriety of the doctrine which he has advocated: that, if they avoid conspiracies, that if they be innocent, they will be safe.”

“A most delusive doctrine,” he exclaimed. And he warned Mr. Hay: “If he be now in the full tide of successful experiment, in the enjoyment of the approbation of his country and his government, so was, not long ago, the gentleman whom I advocate. He was as highly distinguished by the kind favor of the people as he could be by their suffrages.

“It was then incredible that their favor should so soon be changed to calumny and rancor of party into the most malignant hatred. The gentleman may now think himself perfectly safe, by the prevalence of his party and his principles; but the day very possibly may come when he may find himself as obnoxious as the gentleman whom I defend.

“He may possibly by the same means, the malice, the injustice and violence of party spirit, like my client, not only find himself reviled and calumniated, but his dearest friends abused and persecuted. I should be sorry that such a prediction should be realized with respect to any gentleman; but, such are the natural consequences of his own pernicious doctrine, and those we oppose.”

And now the speaker arrived at the end of his argument. Those of the assemblage whose minds may have wandered now and then in the course of Mr. Martin’s exposition of the technicalities of the law were brought to attention by the solemnity of his countenance and the careful weighing of his words:

“When the sun mildly shines upon us, when the gentle zephyrs play around us, we can easily proceed forward in the straight path of our duty. But when the bleak clouds enshroud the sky with darkness, when the tempest rages, the winds howl and the waves break over us—when the thunders awfully roar over our heads and the lightnings of heaven blaze around us—it is then that all the energies of the human soul are called into action.

“It is then that the truly brave man stands firm at his post. It is then that by an unshaken performance of duty man approaches the nearest possible to the Divinity. Nor is there any object in the creation on which the Supreme Being can look down with more delight and approbation than on a human being in such a situation and thus acting.”

The speaker turned to look straight into the eyes of the Chief Justice as he continued: “May that God who now looks down upon us, who has in his infinite wisdom called you into existence and placed you in that seat to dispose justice to your fellow citizens, to preserve and protect innocence against persecution—may that God so illuminate your understanding that you may know what is right; and may he nerve your soul with firmness and fortitude to act according to that knowledge.”

So saying, Mr. Martin shuffled over to his seat. It is a safe assumption that the Chief Justice was not a little moved.

There were souvenir hunters even in those early days. In the Gazette and General Advertiser, organ of Richmond’s Federalists, on the morning of August 31 appeared this advertisement:

The Gentleman—who while I was on Sat. last addressing the court, TOOK MY CANE from the seat behind me and carried it away—is respectfully requested to send it when he has done with it, to the Bar of the Swan Tavern. Luther Martin.

It hardly required a public notice to let people know where Mr. Martin in his moments of relaxation was most likely to be found.