¹ 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 may be "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, 1917, scraps Marshall's opinion pretty completely. ¹ ¹ 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 vs. Mitchell, 2 Dallas, 348; and Druecker vs. Salomon, 21 Wis., 621.