maeva marcus stated that the information in Wilkinson’s affidavit, not made on oath, was not sufficient to indicate that war against the United States had been undertaken.45 If that had been all Marshall wrote, the subsequent Burr trial in Richmond might have proceeded differently. But in various other places in the opinion, Marshall seemed to believe in a broader interpretation of the Constitution’s treason clause, noting at one point that “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.”46 Bollman and Swartwout were discharged and never tried, but, because of Marshall’s unclear definition of the constitutional crime of treason, Burr’s fate in Richmond remained in doubt. By the time that the Burr trial opened, the lead characters had been introduced – all had played apart in the Bollman and Swartwout proceedings except Burr – and their motivations revealed. Burr had not known what was happening in the District of Columbia case, as he was floating down the Ohio and Mississippi Rivers, and he learned that what he was doing was considered treasonous by government officials and the public only when he reached the Territory of Mississippi. Although a grand jury impaneled by the territorial court found no reason to charge him, General Wilkinson eventually ordered Burr’s capture, and he was brought to Richmond.47 Because it was common knowledge that President Jefferson was pursuing a personal vendetta against Burr and that Chief Justice Marshall had shown a willingness to stand up for constitutional principles that placed obstacles in Jefferson’s path, the trial came to be seen as something more than a forum for deciding Burr’s guilt. Marshall, sitting as a circuit judge, represented the third branch of government, the judiciary, and the prosecution represented the second branch, the executive. That the two branches were controlled by different political parties added to the tension. The two clashed even before the grand jury had the opportunity to indict Burr: When Burr’s attorneys made a motion for the court to issue a subpoena duces tecumto the President to produce docu45 Ibid., p. 64. 46 U. S. Reports (4 Cranch), vol. 8, p. 126. 47 Haskins, George L. – Johnson, Herbert A. 1981 pp. 262-264. 209
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