7, scraps Marshall's opinion pretty completely. *

* 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
w. Mitchell, 2 Dallas, 348; and Druecker vs. Salomon, 21 Wis., 621.

On the day following the reading of Marshall's opinion, the prosecution,
unable to produce two witnesses who had actually SEEN Burr procure
the assemblage on the island, abandoned the case to the jury. Shortly
thereafter the following verdict was returned: "We of the jury say
that Aaron Burr is not proved to be guilty under this indictment by
any evidence submitted to us. We therefore find him not guilty." At
the order of the Chief Justice this Scotch verdict was entered on the
records of the court as a simple Not Guilty.

Marshall's conduct of Burr's trial for treason is the one serious
blemish in his judicial record, but for all that it was not without a
measure of extenuation. The President, too, had behaved deplorably and,
feeling himself on the defensive, had pressed matters with most unseemly
zeal, so that the charge of political persecution raised by Burr's
attorneys was, to say the least, not groundless. Furthermore, in
opposing the President in this matter, Marshall had shown his usual
political sagacity. Had Burr been convicted, the advantage must all have
gone to the Administration. The only possible credit the Chief Justice
could extract from the case would be from assuming that lofty tone of
calm, unmoved impartiality of which Marshall was such a master--and
never more than on this occasion--and from setting himself sternly
against popular hysteria. The words with which his opinion closes have
been often quoted:

"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.

"That this Court dare not usurp power is most true.

"That this Court dare not shrink from its duty is not less true.

"No man is desirous of placing himself in a disagreeable situation.
No man is desirous of becoming the popular subject of calumny. No man,
might he let the bitter cup