Did he work by candlelight long into the night? Did he wake up with the birds and labor during the cool hours of the early morning? Or did he sit under the trees in his spacious yard during the day, braving the critical looks of his neighbors as they returned from church? Whatever the Chief Justice’s method, when court met on Monday morning, August 31, he was ready to deliver his opinion. Counsel, jury, and public in attendance knew that the crisis in the trial had been reached.
The ever-courteous Marshall made use of his introduction to compliment counsel on both sides. The motion, he said, had been argued in a manner worthy of its importance and with an earnestness evincing the strong conviction felt by opposing counsel that the law was with them.
“A degree of eloquence,” he declared, “seldom displayed on any occasion has embellished a solidity of argument and a depth of research by which the court has been greatly aided in forming the opinion it is about to deliver.”
The Chief Justice restated the issue which was that, the testimony having shown that the prisoner was not present when the overt act mentioned in the indictment took place, objection had been raised that testimony offered to connect him with those who committed the overt act was totally irrelevant and therefore must be rejected.
His first task was to clarify the confusion arising out of the opinion in the Bollman and Swartwout case, which already had been brought up by counsel on both sides. It was said that it was on the basis of that opinion that the Grand Jury had seen fit to bring in the indictments for treason. The offending phrase was the one which said: “If a body of men be actually assembled for the purpose of effecting by force a treasonable object, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leaguered in the general conspiracy, are to be considered as traitors.”
If the phrase meant what it seemed to mean then, surely, the absence of Colonel Burr from Blennerhassett Island at the time of the alleged overt act in no way relieved him of his guilt. Was the phrase a mere obiter dictum or chance remark as the defense maintained, or was it a formal declaration of the court changing the previous conception of treason as laid down in the Constitution as the prosecution assumed it to be? The time had come for the Chief Justice to make known which interpretation was correct.
He had heard, said Judge Marshall, that his opinion had been construed to mean that any assemblage whatever for a treasonable purpose, whether in force or not in force, whether in condition to use violence or not in that condition, was levying war. It had not been expressly advanced by the bar, but he understood it had been adopted elsewhere. (Anyone who was at all conversant with the existing political situation knew that the interpretation referred to was that of President Jefferson. It had been adopted by his partisans, and it was because it had gained such a firm hold that the incidents of Blennerhassett Island, mild as they were, were assumed by the prosecution to fulfill the Chief Justice’s definition of an overt act of levying war.)
Judge Marshall pointed out that the court which gave the opinion was composed of four judges. Of these he said one was sick. He seemed uncertain as to this judge’s opinion. Three judges were absent. Therefore, said the Chief Justice, if the three judges who were absent concurred with the sick judge who was present “and perhaps dissents,” a majority of the judges might overrule the decision. A critical observer might have charged that the Chief Justice was falling back upon a good many suppositions.
What, he asked, was levying war? He had, he said, looked at all the English authorities and, so far as he could see, levying war meant just that. The words had received no technical meaning different from their natural meaning. The assemblage must be a warlike assemblage, carrying the appearance of force, and in a situation to practice hostility. The Chief Justice added for good measure that the American judges, so far as their opinions had been quoted, seemed to go even farther than the English authorities and require the actual exercise of force.
But, he reminded, it had been said that all these authorities had been overruled by the decision of the Supreme Court in the case of the United States versus Bollman and Swartwout. Now it would be expected that an opinion which was to overrule all former precedents and to establish a principle never before recognized would be expressed in plain and explicit terms. Had the intention been to make so material a change, then the Court ought to have expressly declared that any assemblage of men whatever who had formed a treasonable design constituted the fact of levying war. Yet no such declaration was made.