What was more, said the Chief Justice, in the case of Bollman and Swartwout there was no evidence that even these two men had met for the purpose of executing a plan. In their case the issue of an assemblage did not appear. In short, the Chief Justice asserted that general expressions ought not to be considered as overruling settled principles without a direct declaration to that effect.
Thus at last the ghost of the opinion in the case of Bollman and Swartwout was laid by the same hand that had raised him. At least the Chief Justice must have hoped so. It was not often that his rare gift of logical reasoning was put to so severe a test. By this time counsel for the prosecution must have seen how the wind was blowing, if they had ever harbored any doubts about it.
The Chief Justice now got to the nub of his opinion. It was essential, he said, that an indictment be explicit as to the nature of the crime and the place where it was committed. Otherwise the accused would not know how to defend himself. The whole treason laid in the indictment was the levying of war on Blennerhassett Island and the whole question was whether the prisoner was legally present. It was as if no other overt act ever had existed. Therefore, said Judge Marshall, the only point the Court was examining was the constructive presence of the prisoner at the fact charged.
Now, said he, had Burr arrived on the island he would have been present in fact. Or, had he taken a position near enough to co-operate with those on the island, the question of whether he was constructively present would be a compound of law and fact which the jury would decide with the assistance of the Court as respected the law.
On the other hand, if the prisoner was not with the party at the time, did not intend to join it, and if his co-operation was at a great distance, in fact in a different state, then he was not constructively present. Therefore the Judge confessed that he was strongly of the opinion that proof of the actual or legal presence of the prisoner on the island by the evidence of two witnesses could not be made.
But, continued the Judge, the prosecution might contend that the indictment did not charge the prisoner with actually being present at the assemblage on the island, but that though he was not at it he caused it. If the law was as the prosecution maintained then the procurement of the assemblage took the place of presence at the assemblage. In that case, he insisted, under the Constitution procurement of an assemblage should be testified to by two witnesses just like presence at an overt act.
Judge Marshall pointed out that, because the advising of treason or the procuring of treason was a secret matter of the mind rather than an actual deed, it might be objected that it would be hard to prove. But, he retorted, the mere difficulty of proving a fact surely did not justify a conviction without proof.
Was the testimony the Government proposed to offer to prove the overt act laid in the indictment? No, it was evidence of subsequent transactions at a different place and in a different state. Such testimony, he declared, was not relevant. It could be produced only as corroborative or confirmatory testimony, if it could be produced at all.
The Chief Justice had now dealt with the decision in the Bollman and Swartwout case and made it clear that it had not been intended to serve as a new rule of law introducing constructive treason into the United States. He had followed that up by showing that neither Colonel Burr’s actual presence nor legal presence on the island at the time of the overt act had been proved. This done he was coming to the end of his opinion. The words he was about to speak had evidently been carefully chosen. He must have been aware of the solemnity of the moment even though he may not have foreseen that he was speaking for posterity as he began:
“Much has been said in the course of the argument on points on which the Court feels no inclination to comment particularly; but which may, perhaps not improperly, receive some notice.