Next day the Chief Justice presented his opinion, and it was a victory for the prosecution. The Court, he declared, had the right to commit even after the Grand Jury had been chosen. Mr. Hay’s motion was sustained and now he could proceed to present the new evidence he claimed to have on Burr’s alleged treason. On hearing the opinion, however, Hay stated that he did not wish to present evidence at this time, provided the prisoner’s bail were raised. He proposed that counsel for both sides meet to see if an agreement could be reached. The proposal was accepted and the meeting was held, but it ended in a deadlock. Hay then proceeded to present his evidence while the defense challenged each affidavit and witness. Its objection to the Wilkinson affidavit was sustained. Peter Taylor, Blennerhassett’s gardener, and Jacob Allbright, a laborer on the island, were permitted to testify. But when the affidavit of one Sergeant Dunbaugh was offered the defense again protested. 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.