maeva marcus guments over the proper interpretation of the Constitution’s treason clause and some thinly disguised political attacks on the character of Burr and Jefferson filled many days. But finally, Burr’s motion to exclude any more prosecution witnesses’ testimony that did not pertain to the specific charge in the indictment called a halt. The time had come for Marshall to make his most important ruling of the trial.51 Eight days of argument preceded Marshall’s decision, and it clearly focused on the major legal issue confronting the chief justice: Would Burr be considered guilty of treason as a principal, even though factually he could be only an accessory, as he was not present at the place and time where the treason was supposed to have occurred (the prosecution had already admitted that Burr was in another state at the time charged in the indictment)? If the answer was “yes,” the English doctrine of constructive treason would become a part of American constitutional law.52 Marshall, stating that a single justice sitting as a circuit judge, could not settle the meaning of the treason clause, proceeded to follow the Supreme Court’s decision, written by him, in the Bollman/Swartwout case.53 He reiterated that the accused must be proved guilty of an overt act of levying war and two witnesses must testify to that overt act. As the prosecution could not produce two witnesses, Marshall sided with Burr and allowed no more evidence. Marshall instructed the jury to apply the law set down in his opinion to the facts in the case, and the jury returned a verdict of “not guilty.”54 Much more could be said about the Burr trial, but for the purposes of this paper, explaining the role of intermediate courts, which had both original and appellate jurisdiction, the major conclusion to be drawn is 51 Ibid., p. 9. 52 Haskins, George L. – Johnson, Herbert A. 1981 pp. 278-279. 53 Marshall reviewed English and American precedents relevant to the law of treason but declared that the Burr case did not require him to give a definite opinion on the issue of constructive treason, because of the specifics of the indictment against Burr and the need, as a primary matter, to satisfy the American constitutional requirements to prove treason. See Marshall’s opinion inFederal Cases, vol. 25, p. 55 ff. 54 For discussion of Marshall’s opinion, see Newmyer, R. Kent 2012 pp. 154-66; Haskins, George L. – Johnson, Herbert A. 1981 pp. 279-285. 211
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