hybrid appellate courts diately questioned Jones as to the evidence to prove treason. The Constitution defined treason as “levying war against the United States” and specified that two witnesses be produced for the overt act.40 Did the President’s message actually point to a “levying of war?” Could the President’s message to Congress, not given on oath, be sufficient evidence to support the issuance of an arrest warrant on the charge of treason? Many of the legal issues that were to play a large part in the Burr trial had their first airing in the District of Columbia.41 The course of the proceedings changed, however, when the argument was interrupted by a motion of a lawyer for writs of habeas corpus on the prisoners’ behalf. The circuit court judges, in a two to one decision, denied the writ, accepting the government’s position that the President’s message was sufficient evidence of probable cause to issue a warrant.42 Had the motion for habeas corpus not been made, the trial of Bollman and Swartwout would have proceeded and, if they had been convicted, their conviction would have been final as the Supreme Court had no criminal jurisdiction. But the Supreme Court did have jurisdiction of an appeal of a denial of a writ of habeas corpus,43 so the trial was on hold pending that appeal. And the appeal was successful. On the question of whether probable cause had been shown to hold Bollman and Swartwout for trial on a count of treason, Chief Justice Marshall, for the Court, answered “No.” He based his opinion on a strict construction of the constitutional treason clause, saying that war must actually have been levied against the United States in order to establish the crime of treason and that conspiring to levy war was acrime distinct from treason.44 Further, the Court 40 U. S. Constitution, Article III, section 3. 41 Federal Cases, vol. 24, pp. 1189-96. 42 Judge Cranch, in his dissenting opinion, stated: “I can never agree that executive communications not on oath or affirmation, can, under the words of our constitution, be received in a court of justice, to charge a man with treason, much less to commit him for trial.”Federal Cases, vol. 24, p. 1193. 43 Or so the Supreme Court decided, with two dissents. Chief Justice Marshall stated that section 14 of theJudiciary Act of 1789authorized the Court, on appeal, to issue the writ. U. S. Reports (4 Cranch), vol. 8, p. 125; Newmyer, R. Kent 2012 pp. 50-51 and 57. 44 Newmyer, R. Kent 2012 pp. 62-63. 208
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