later position was as
unconvincing as it was labored. *

* 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 maybe "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, 191