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.