eason why they had opposed the Common Law doctrine.

* 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