Without Precedent

by Joel Richard Paul

  Before reaching New Orleans, Burr voluntarily submitted to authorities in Mississippi where a grand jury was called in February. The charge of treason was quickly dismissed, and Burr continued on toward New Orleans. Wilkinson ordered his men to capture Burr and bring him to justice. Burr surrendered to Wilkinson’s soldiers in Alabama and was brought to Washington to face trial.

  The case against Burr would be difficult to prove. While it was true that Burr had talked about fighting Spain—a plan he shared with Andrew Jackson—there was no solid evidence of treason.21 Levying war against Spain was not treason. At worst, it may have been a misdemeanor in violation of the Neutrality Act of 1794. War against Spain was a popular cause throughout the west. Indeed, Jefferson, when he was secretary of state, had secretly plotted just such a military expedition with Citizen Genet.

  Jefferson, however, was not interested in the truth about Burr. He considered Burr “a crooked gun, or other perverted machine, whose aim or stroke you could never be sure of.”22 Jefferson rightly feared that Burr might challenge Jefferson’s chosen successor, James Madison. And the president had a score to settle. Jefferson arranged for Burr to be indicted and tried in Richmond where he could be confident of a jury sympathetic to his aim. By moving the trial to Richmond, Jefferson placed Burr’s fate in the hands of the U.S. circuit court presided over by John Marshall. If the Republicans had not insisted that Supreme Court justices ride circuit, Marshall would have had nothing to do with Burr’s trial. By a strange twist of history, Jefferson’s archrival in Virginia would sit in judgment on Jefferson’s archrival in the Republican Party.

  Was Jefferson’s decision to send the trial to Richmond an error of judgment or a carefully calculated ploy? Perhaps Jefferson thought that he could destroy Marshall by dropping an explosive criminal case in his lap. If Marshall dismissed the charges or if the jury acquitted Burr, Marshall would be condemned in the court of public opinion.

  Before Burr’s trial even began, the two messengers received by General Wilkinson, Swartwout and Bollman, were sent to Washington for trial in January 1807. Jefferson ordered that neither Bollman nor Swartwout should be allowed to see an attorney as guaranteed by the Sixth Amendment to the Constitution.23 Jefferson and Secretary of State James Madison personally interrogated Bollman in the marine barracks where he was being held. The president tried to coax Bollman into implicating Burr in a war against the United States, but Bollman insisted that Burr was interested only in liberating Mexico. Jefferson persuaded Bollman to write out his account and assured him that no one else would see his statement. Jefferson later broke his promise and had Bollman’s written statement introduced against Burr at trial before the D.C. Circuit Court.24

  Charles Lee, Marshall’s friend and Marbury’s attorney, intervened on behalf of Bollman and Swartwout and appealed to the U.S. Supreme Court for their release. On February 13, 1807, the Supreme Court heard their appeal. The central issue in the case turned on the question of what constituted treason.

  Article III of the Constitution spelled out that “[t]reason against the United States, shall consist only in levying war against them” and that “[n]o person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” Since the beginning of the Republic, there had been only five prior convictions for treason. These had resulted from the 1794 Whiskey Rebellion and the 1799 Fries’s Rebellion among the Pennsylvania Dutch. All five cases had been tried in the circuit court for Pennsylvania, none reached the Supreme Court, and all the defendants were later pardoned, so these cases did not provide precedents for interpreting the law of treason.25 The 1790 federal crimes act made it a crime punishable by death to make war against the United States or aid the enemy. Under that act, a person accused of treason was guaranteed legal counsel, which Bollman and Swartwout had been denied.26

  Charles Lee, joined by attorneys Robert Goodloe Harper and Francis Scott Key, who later composed the national anthem, argued before the Supreme Court that in the absence of an overt act of levying war, the defendants could not be charged with treason. The government’s case rested entirely on an affidavit submitted by Wilkinson that was based on his interrogation of Swartwout and his unauthenticated translation of the cipher letter. It was an exceedingly weak case. Attorney General Caesar Augustus Rodney admitted that the affidavit alone was not enough to sustain a conviction and that if Burr’s only aim was to foment war against Mexico then that was not treasonable. However, the government argued that since the president had declared that Burr was engaged in war against the United States, that alone was sufficient to convict Bollman and Swartwout of treason.27

  On February 21, Chief Justice Marshall read out his unanimous opinion to a packed courtroom. The whole country understood that the Court’s decision as to the evidence and the definition of treason could affect the outcome of Burr’s trial in Richmond. Once again Marshall was in the midst of a heated political battle. In his opinion, the chief justice stuck to the literal language of the Constitution. To prove that the defendants were guilty of treason, the government must show that they actually engaged in war against the United States. It was not sufficient to show that they intended to do so. The government had to produce at least two witnesses to the same overt act, and General Wilkinson’s affidavit did not prove that any overt act had occurred. Even assuming the witnesses had intended to commit treason, mere conspiracy was not punishable under the Constitution. So Marshall freed Bollman and Swartwout in what would be a dress rehearsal for Burr’s trial two months later.28

  Back in Richmond that spring, Marshall could not have been looking forward to Burr’s trial. He knew he was facing a political trap. Virginians were eager to see Jefferson’s nemesis hang. The trial was a public sensation. People from all over the country descended on Richmond to watch the proceedings. Since Burr was staying at the Eagle Tavern, Marshall thought it would be most amenable to conduct the proceedings there. The pretrial proceedings opened in a spare room at the Eagle on March 30 with Marshall presiding as a circuit court judge. The Richmond newspapers complained that given the number of spectators eager to observe the historic trial, the limited seating was reminiscent of the “Spanish Inquisition.”29 Marshall agreed to move the proceedings to the courthouse, but when even the courthouse could not accommodate the press and the public, the proceedings were moved to the Virginia House of Delegates. Over the next several months, as many as six thousand people mobbed Richmond hoping to catch a glimpse of Aaron Burr in the dock, elegantly attired in a new black silk suit with his hair perfectly coiffed and powdered. (If Burr was going to be hanged, he was going to hang fashionably.) Visitors from across the country camped along the James River just to witness this historic event. People packed into taverns and wagered huge sums on Burr’s conviction.30 Among those who crowded into the courtroom was the New York writer Washington Irving, whom Burr had invited to chronicle his trial.

  Marshall found that there was probable cause to try Burr for violations of the 1794 Neutrality Act for plotting war against Mexico. However, he was not impressed by the evidence presented by the government on the charge of treason. The prosecution presented affidavits from Generals Wilkinson and William Eaton even though neither general had witnessed any overt act against the United States.

  Marshall chastised the government for not providing any evidence of the alleged army of thousands of men. “[T]o constitute his crime, troops must be embodied, they must be actually assembled; and these are facts which cannot remain invisible,” Marshall insisted. “Treason may be machinated in secret, but it can be perpetuated only in the open day and in the eye of the world.”31 If Burr had raised an army of thousands, surely there must have been at least two witnesses. “What could veil his troops from human sight?” Marshall asked. “[A]n invisible army is not an instrument of war.”32

  More than five weeks had passed since the Supreme Court had issued its opinion in the Bollman case. The g
overnment had more than enough time to find witnesses to prove Burr’s guilt.

  The chief justice released Burr on ten thousand dollars bail pending a grand jury investigation of the more serious charge of treason. The local newspapers denounced Marshall for not demanding a higher bail. “This act of the Chief Justice has certainly injured him considerably in the opinion of his country,” warned the Virginia Argus. And if as a result “a traitor should escape by his contrivance, his consolation will be in the applause of that party [the Federalists] to which he is attached in opposition to his country and whose approbation he prefers to that of the rest of mankind in the present and of posterity in future ages.”33

  To make matters worse, in a rare moment of poor judgment, Marshall had attended a party given in his honor by one of Burr’s attorneys, and Burr had appeared at the event. “What will the people of Virginia . . . think when they learn, that the chief justice has feasted at the same convivial board with Aaron Burr?” asked one local writer. “We regard such conduct as a willful prostration of the dignity of his own character, and a wanton insult he might have spared his country.”34 The fete was widely reported in the press as a “Feast of Traitors.”35 The trial had not even begun, and the Virginia press was already savaging Marshall’s reputation. Jefferson must have been delighted.

  The grand jury was impaneled in late May and did not return an indictment on treason until the end of June. Public interest in the outcome was so great that the local press gave a nearly verbatim report on each day’s proceedings.36 Jury selection did not begin until mid-August, and the trial finally opened on August 17, 1807.

  Burr’s legal team had expanded to include two Framers of the Constitution—Luther Martin and Edmund Randolph, who was also a former attorney general and governor of Virginia. Burr also added two popular local lawyers to appeal to the Virginia jurors—John Wickham and Benjamin Botts. And Burr hired a prominent member of the New York bar, John Baker, just to keep him off the government’s legal team. The government’s legal team was notably weaker. U.S. Attorney George Hay led the prosecution, repeatedly bumbling the government’s case. He relied principally on William Wirt, one of Virginia’s best legal minds. The other members of the government’s team included Virginia’s lieutenant governor, Alexander MacRae, who provided a little star power but mostly bored the assembled public, and Attorney General Rodney, whose performance was so lackluster that he quit in the middle of the trial.37

  President Jefferson publicly voiced his confidence that Burr was guilty and sent orders from Monticello to the prosecutors about how to conduct the trial. Jefferson even provided prosecutors with a stack of signed presidential pardons with a space for inserting a name so the prosecutors could offer pardons to anyone willing to testify against Burr. Jefferson confided to an ally that the evidence “will satisfy the world, if not the judges of Burr’s guilt.”38

  Burr’s lawyers demanded that President Jefferson be subpoenaed to testify as to his role. They also demanded that Jefferson be required to turn over original copies of his correspondence with General Wilkinson.

  Once again, Marshall faced a confrontation with Jefferson and sought to find a practical compromise. Rather than requiring the president to appear in person, Marshall ruled that Jefferson must turn over his correspondence with Wilkinson. The president claimed that private correspondence within the executive branch was protected by “executive privilege” and could not be subpoenaed. This was the first time that a president refused to comply with a subpoena. (One hundred and seventy years later, President Nixon’s lawyers would refer to this case as a precedent for refusing to turn over tape recordings of his conversation during the Watergate investigation.) However, Jefferson, too, wanted to avoid a direct confrontation with the chief justice, so he “voluntarily” released the documents to the court. Burr’s attorneys used this correspondence to cast doubt on Wilkinson’s credibility.

  When General Wilkinson entered the courtroom, all eyes turned to observe Burr’s accuser. Washington Irving recorded that Wilkinson “strutted into court . . . swelling like a turkey cock, and bracing himself up for the encounter of Burr’s eye.” Burr took no notice of the general bedecked in his dress uniform until Wilkinson’s name was called. Then “Burr turned his head, looked him full in the face with one of his piercing regards, swept his eye over his whole person from head to foot, as if to scan its dimensions, and then coolly resumed his former position . . . tranquilly as ever.” Irving was impressed by Burr’s “admirable” composure, “no affectation of disdain or defiance; a slight expression of contempt . . . such as you would show any person to whom you were indifferent, but whom you considered mean and contemptible.” Though Irving did not agree with Burr’s politics, his grace made him a sympathetic figure in Irving’s eyes.39

  From the outset of the trial, the prosecutors struggled against the paucity of hard evidence. They could show only that Burr had talked about levying war, though it was far from clear it was against the United States. Wilkinson’s testimony was contradicted. The prosecutors could not produce a single witness to an overt act of making war against the United States. They tried to fill this gap by arguing that the overt act consisted in Burr’s assembling recruits on Blennerhassett Island. In other words, evidence of an intent to commit treason was sufficient to constitute the crime.

  Marshall responded that intent cannot substitute for the lack of an overt act; it can be introduced into evidence only as an element of the overt act of levying war.40 Leaving aside the fact that the purpose of the gathering was not clear, that the prosecution had no witnesses, and that there was no overt act of levying war, it was impossible to connect whatever happened on the island to the defendant. The most glaring obstacle for the prosecutors was that Burr was not even present on the island at the time.41

  In desperation, U.S. Attorney Hay reached for a novel argument: the ancient British common law doctrine of “constructive treason.”42 Constructive treason gave British courts broad authority to treat a mere statement critical of the king as treason. Constructive treason was a convenient way to stifle dissent. It was precisely the kind of despotic measure that Americans had rebelled against. If the court tolerated constructive treason, the government could censor anyone’s speech. Republicans, who had charged that the Alien and Sedition Acts violated First Amendment rights, now found themselves on the flip side of the argument. Marshall firmly rejected constructive treason and demanded that the government meet the stricter standard for treason according to the letter of the Constitution.43 It was a courageous stand in the face of hostile public opinion.

  Burr’s attorneys then asked Marshall to rule that the jury could not hear any evidence that did not prove an overt act of levying war. The effect of this ruling would be to exclude virtually all the testimony against Burr as well as the cipher letter, none of which showed an overt act. Marshall ruled that none of the evidence pertaining to Burr’s character or any events other than what happened on Blennerhassett Island could be presented to the jury. In effect, Marshall directed the jury to acquit Burr of treason.44 On September 1, 1807, the jury found Burr not guilty. Burr’s life was spared.

  The press erupted again with another round of vicious attacks on Marshall’s character and motives for acquitting Burr. One critic charged that “[t]o the Federalists Mr. Marshall is indebted for all his influence,” and that he had manipulated the law to serve the Federalist cause.45 The Virginia Argus declared that Marshall’s conduct of the trial had proved that an independent judiciary “is a very pernicious thing.” And it called for an amendment giving the President the power to remove any judge at the request of a majority of both houses of Congress without the need to impeach.46

  Under pressure from Jefferson for a conviction, Hay now sought to try Burr for the misdemeanor of violating the Neutrality Act by conspiring to wage war against Spain. Since Marshall ruled that the government’s evidence was inadmissible, the jury again acquitted Burr. Then the pr
osecutor tried one more tactic: He asked the court to commit Burr to face trial for treason and violations of the Neutrality Act in either Kentucky or Ohio, where presumably more evidence might be gathered. Marshall listened to another month of testimony and argument before deciding that Burr could be tried in Ohio only on the lesser charge of violating the Neutrality Act. Ultimately, the federal government conceded that they did not have enough evidence to prosecute, and they abandoned their efforts. By then, Jefferson could be confident that Burr would no longer threaten him—either in politics or in the judgment of history.

  With Burr’s acquittal, enraged Republicans turned against Marshall. Rather than blame the prosecutors for overreaching, they vilified the chief justice. Republicans accused Marshall of playing party politics and taking sides with a traitor against the president. A mob in Baltimore burned Marshall in effigy.47 The Virginia press was particularly vicious. William Thompson, writing under the pen name Lucius, attacked the chief justice in a series of articles that were widely circulated. He accused Marshall of having “eaten of the same bread, and drank of the same cups” as the traitor, “[i]gnorant of the satanic services he was mediating.” He continued that Marshall had exhibited conduct “disgraceful to the character of a judge” and that he had “prostrated the dignity of the chief justice of the United States.” Marshall had manifested “culpable partiality towards the accused.”48