aid and comfort," and no person may be convicted of it "unless on the
testimony of two witnesses to the same overt act, or on confession in
open court." The motion to commit Burr for treason thus raised at
the outset the question whether in this case an "overt act" existed.
Marshall, who held that no evidence had been shown to this effect,
denied the motion, but consented to commit the prisoner on the lesser
charge that he had attempted a military expedition against Spain. As
this was a bailable offense, however, Burr was soon at liberty once
more.

Nor was this the only respect in which the preliminary proceedings
sounded a note of antagonism between the Chief Justice and the
Administration which was to recur again and yet again in the months
following. Only a few weeks earlier at Washington, Marshall had, though
with some apparent reluctance, ordered the release of Bollmann and
Swartwout, two of Burr's tools, from the custody of the Federal
authorities. Alluding in his present opinion to his reason for his
earlier action, he wrote: "More than five weeks have elapsed since the
opinion of the Supreme Court has declared the necessity of proving the
fact, if it exists. Why is it not proved? To the executive government
is entrusted the important power of prosecuting those whose crimes may
disturb the public repose or endanger its safety. It would be easy, in
much less time than has intervened since Colonel Burr has been alleged
to have assembled his troops, to procure affidavits establishing the
fact."

This sharp criticism brought an equally sharp retort from Jefferson, to
which was added a threat. In a private letter of the 20th of April, the
President said: "In what terms of decency can we speak of this? As if an
express could go to Natchez or the mouth of the Cumberland and return in
five weeks, to do which has never taken less than twelve!... But all the
principles of law are to be perverted which would bear on the favorite
offenders who endeavor to overturn this odious republic!... All this,
however, will work well. The nation will judge both the offender and
judges for themselves.... They will see then and amend the error in our
Constitution which makes any branch independent of the nation.... If
their [the judges] protection of Burr produces this amendment, it will
do more good than his condemnation would have done." Already the case
had taken on the color of a fresh contest between the President and the
Chief Ju