"The mind is not to be led to the conclusion that the individual was present by a train of conjectures, of inferences, or of reasoning; the fact must be proved by two witnesses," as required by the Constitution. "Neither, where procurement supplies the want of presence, is the mind to be conducted to the conclusion that the accused procured the assembly, by a train of conjectures or inferences or of reasoning; the fact itself must be proved by two witnesses."[1271]
To the objection that this could "scarcely ever" be done, since "the advising or procurement of treason is a secret transaction," the answer was, said Marshall, "that the difficulty of proving a fact will not justify conviction without proof." And most "certainly it will not justify conviction without [one] direct and positive witness in a case where the constitution requires two." The true inference from "this circumstance" was "that the advising of the fact is not within the constitutional definition of the crime. To advise or procure a treason ... is not treason in itself."[1272]
The testimony which the Government now proposed to offer was to "prove—what? the overt act laid in the indictment? that the prisoner was one of those who assembled at Blennerhassett's island? No!" But, instead, "evidence [of] subsequent transactions at a different place and in a different state." But such "testimony was not relevant." If it could be introduced at all, it would be "only in the character of corroborative or confirmatory testimony, after the overt act has been proved by two witnesses in such a manner that the question of fact ought to be left with the jury."[1273]
Before closing, Marshall answered the threats of Hay and Wirt that, if he decided in favor of Burr, he would be impeached: "That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true.... No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self reproach, would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace."[1274]
Let the jury apply the law as announced to the facts as proved and "find a verdict of guilty or not guilty as their own consciences shall direct."
The next morning the petit jury retired, but quickly returned. Marshall's brother-in-law, Colonel Edward Carrington, foreman, rose and informed the court that the jury had agreed upon a verdict.
"Let it be read," gravely ordered Marshall.
And Colonel Carrington read the words of that peculiar verdict:
"We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty."[1275]
Instantly Burr, Martin, Wickham, and Botts were on their feet protesting. This was no verdict, according to law. It was informal, irregular. In such cases, said Burr, the jury always was sent back to alter it or else the court itself corrected it; and he accurately stated the proper procedure.