This line of testimony concluded, the prosecution next indicated its intention of introducing evidence to show Burr’s connection with the assemblage on the island, when the defense sprang the coup it had been maturing from the outset. Pointing out the notorious fact that on the night of the 10th of December Burr had not been present at the island but had been two hundred miles away in Kentucky, they contended that, under the Constitution, the assemblage on Blennerhassett’s island could not be regarded as his act, even granting that he had advised it, for, said they, advising war is one thing but levying it is quite another. If this interpretation was correct, then no overt act of levying war, either within the jurisdiction of the Court or stated in the indictment, had been, or could be, shown against Burr. Hence the taking of evidence—if not the cause itself, indeed—should be discontinued.
The legal question raised by this argument was the comparatively simple one whether the constitutional provision regarding treason was to be interpreted in the light of the Common Law doctrine that “in treason all are principals.” For if it were to be so interpreted and if Burr’s connection with the general conspiracy culminating in the assemblage was demonstrable by any sort of legal evidence, then the assemblage was his act, his overt act, proved moreover by thrice the two witnesses constitutionally required! Again it fell to Wirt to represent the prosecution, and he discharged his task most brilliantly. He showed beyond peradventure that the Common Law doctrine was grounded upon unshakable authority; that, considering the fact that the entire phraseology of the constitutional clause regarding treason comes from an English statute of Edward III’s time, it was reasonable, if not indispensable, to construe it in the light of the Common Law; and that, certainly as to a procurer of treason, such as Burr was charged with being, the Common Law doctrine was the only just doctrine, being merely a reaffirmation of the even more ancient principle that “what one does through another, he does himself.”
In elaboration of this last point Wirt launched forth upon that famous passage in which he contrasted Burr and the pathetic victim of his conspiracy:
Who [he asked] is Blennerhassett? A native of Ireland, a man of letters, who fled from the storms of his own country to find quiet in ours.… Possessing himself of a beautiful island in the Ohio he rears upon it a palace and decorates it with every romantic embellishment of fancy. [Then] in the midst of all this peace, this innocent simplicity, this pure banquet of the heart, the destroyer comes … to change this paradise into a hell.… By degrees he infuses [into the heart of Blennerhassett] the poison of his own ambition.… In a short time the whole man is changed, and every object of his former delight is relinquished.… His books are abandoned.… His enchanted island is destined soon to relapse into a wilderness; and in a few months we find the beautiful and tender partner of his bosom, whom he lately ‘permitted not the winds of summer to visit too roughly,’ we find her shivering at midnight on the winter banks of the Ohio and mingling her tears with the torrents that froze as they fell. Yet this unfortunate man, thus ruined, and undone and made to play a subordinate part in this grand drama of guilt and treason, this man is to be called the principal offender, while he by whom he was thus plunged in misery is comparatively innocent, a mere accessory! Is this reason? Is it law? Is it humanity? Sir, neither the human heart nor the human understanding will bear a perversion so monstrous and absurd!
But there was one human heart, one human understanding—and that, in ordinary circumstances, a very good one—which was quite willing to shoulder just such a monstrous perversion, or at least its equivalent, and that heart was John Marshall’s. The discussion of the motion to arrest the evidence continued ten days, most of the time being occupied by Burr’s attorneys. ¹ Finally, on the last day of the month, the Chief Justice handed down an opinion accepting practically the whole contention of Burr’s attorneys, but offering a totally new set of reasons for it. On the main question at issue, namely, whether under the Constitution all involved in a treasonable enterprise are principals, Marshall pretended not to pass; but in fact he rejected the essential feature of the Common Law doctrine, namely, the necessary legal presence at the scene of action of all parties to the conspiracy. The crux of his argument he embodied in the following statement: “If in one case the presence of the individual make the guilt of the [treasonable] assemblage his guilt, and in the other case, the procurement by the individual make the guilt of the [treasonable] assemblage, his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses.” Unfortunately for this argument, the Constitution does not require that the “component parts” of the overt act be proved by two witnesses, but only that the overt act—the corpus delicti—be so proved; and for the simple reason that, when by further evidence any particular individual is connected with the treasonable combination which brought about the overt act, that act, assuming the Common Law doctrine, becomes his act, and he is accordingly responsible for it at the place where it occurred. Burr’s attorneys admitted this contention unreservedly. Indeed, that was precisely the reason why they had opposed the Common Law doctrine.
¹ A recurrent feature of their arguments was a denunciation of “constructive treason.” But this was mere declamation. Nobody was charging Burr with any sort of treason except that which is specifically defined by the Constitution itself, namely, the levying of war against the United States. The only question at issue was as to the method of proof by which this crime may be validly established in the case of one accused of procuring treason. There was also much talk about the danger and injustice of dragging a man from one end of the country to stand trial for an act committed at the other end of it. The answer was that, if the man himself procured the act or joined others in bringing it about, he ought to stand trial where the act occurred. This same “injustice” may happen today in the case of murder!
Marshall’s effort to steer between this doctrine and its obvious consequences for the case before him placed him, therefore, in the curious position of demanding that two overt acts be proved each by two witnesses. But if two, why not twenty? For it must often happen that the traitor’s connection with the overt act is demonstrable not by a single act but a series of acts. Furthermore, in the case of procurers of treason, this connection will ordinarily not appear in overt acts at all but, as in Burr’s own case, will be covert. Can it be, then, that the Constitution is chargeable with the absurdity of regarding the procurers of treason as traitors and yet of making their conviction impossible? The fact of the matter was that six months earlier, before his attitude toward Burr’s doings had begun to take color from his hatred and distrust of Jefferson, Marshall had entertained no doubt that the Common Law doctrine underlay the constitutional definition of treason. Speaking for the Supreme Court in the case of Bollmann and Swartwout, he had said: “It is not the intention of the Court to say that no individual can be guilty of this crime who has not appeared in arms against his country; on the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered traitors.” Marshall’s effort to square this previous opinion with his later position was as unconvincing as it was labored. ¹
¹ The way in which Marshall proceeded to do this was to treat the phrase “perform a part” as demanding “a levying of war” on the part of the performer. (Robertson, Reports, vol. II, p. 438.) But this explanation will not hold water. For what then becomes of the phrase “scene of action” in the passage just quoted? What is the difference between the part to be performed “however minute,” and the “action” from which the performer may be “however remote”? It is perfectly evident that the “action” referred to is the assemblage which is regarded as the overt act of war, and that the “part however minute” is something very different.
Burr’s attorneys were more prudent: they dismissed Marshall’s earlier words outright as obiter dicta—and erroneous at that! Nevertheless when, thirty years later, Story, Marshall’s friend and pupil, was in search of the best judicial definition of treason within the meaning of the Constitution, he selected this sentence from the case of Bollmann and Swartwout and passed by the elaborate opinion in Burr’s case in significant silence. But reputation is a great magician in transmuting heresy into accepted teaching. Posthumously Marshall’s opinion has attained a rank and authority with the legal profession that it never enjoyed in his own time. Regarding it, therefore, as today established doctrine, we may say that it has quite reversed the relative importance of conspiracy and overt act where the treason is by levying war. At the Common Law, and in the view of the framers of the Constitution, the importance of the overt act of war was to make the conspiracy visible, to put its existence beyond surmise. By Marshall’s view each traitor is chargeable only with his own overt acts, and the conspiracy is of importance merely as showing the intention of such acts. And from this it results logically, as Marshall saw, though he did not venture to say so explicitly, that the procurer of treason is not a traitor unless he has also participated personally in an overt act of war. As Wirt very justifiably contended, such a result is “monstrous,” and, what is more, it has not been possible to adhere to it in practice. In recent legislation necessitated by the Great War, Congress has restored the old Common Law view of treason but has avoided the constitutional difficulty by labeling the offense “Espionage.” Indeed, the Espionage Act of June 15, 1917, scraps Marshall’s opinion pretty completely. ¹
¹ See especially Title I, Section 4, of the Act. For evidence of the modern standing of Marshall’s opinion, see the chorus of approval sounded by the legal fraternity in Dillon’s three volumes. In support of the Common Law doctrine, see the authorities cited in 27 Yale Law Journal, p. 342 and footnotes; the chapter on Treason in Simon Greenleaf’s well-known Treatise on the Law of Evidence; United States vs. Mitchell, 2 Dallas, 348; and Druecker vs. Salomon, 21 Wis., 621.