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Burr versus Jefferson versus Marshall

By R. Kent Newmyer | HUMANITIES, May/June 2013 | Volume 34, Number 3

Mark Twain once quipped, “Truth is stranger than Fiction . . . because Fiction is obliged to stick to the possibilities; Truth isn’t.” Twain could well have been writing about the trial of Aaron Burr.

The bare-bones facts surrounding the case against the Revolutionary War hero seem inconceivable. But during the long, hot summer of 1807, Burr, a gifted lawyer and charismatic politician—he had  delivered New York’s decisive electoral votes to Thomas Jefferson in 1800 and then served as his vice president—was in the dock of Chief Justice John Marshall’s federal circuit court in Richmond, Virginia, accused by the president himself of treason. He was charged with levying war against the nation in attempting to separate the western states from the union.

Spectators flocked to Richmond from the Virginia countryside and from across the nation. They were so numerous that the trial had to be held in the legislative chamber of the State House, which was fitted with sandboxes to catch the flying tobacco juice. Even Richmond’s leading citizens were hard-pressed to get seats; folks who hadn’t gained admission spilled into the streets, where they could hear street-corner orators, like the young Andrew Jackson, hold forth on Burr’s innocence, or perhaps catch a glimpse of Burr’s beautiful daughter Theodosia, who had come to town to vouch for her father and who had been carefully coached by him in the role she was to play. Those left out of the action altogether gossiped with neighbors and friends, had a few drinks at one of the local watering holes, or bet on the ponies. In short, the trial looked every bit like a Virginia court day writ large—very large.

Most of the spectators were familiar with the stars of the drama, or “Melo-drama,” as one newspaper put it, and most had taken sides in the bitter public conflicts between Jefferson and Burr. Despite Burr’s contribution to the electoral victory in 1800, Jefferson and his party hated and distrusted the New Yorker for not having withdrawn his name from the contest over the presidency in the disputed election, where both men had tied for Electoral College votes. After thirty-six ballots and several weeks of backstage politicking, the House of Representatives awarded the presidency to Jefferson. In pre-Twelfth Amendment days, that meant Burr became Jefferson’s vice president. Although he served with distinction in that office, Burr’s future in Jefferson’s party was over.

Then, after killing Alexander Hamilton in a duel in 1804, Burr had become persona non grata with the Federalists and with polite society generally. To recoup his honor and fortune, he had gone west, where his comings and goings in 1805 and 1806 led Jefferson to believe that he was plotting to separate the western states from the union as the first step toward launching a military attack against the Spanish in Mexico. By the time Burr was arrested and sent to Richmond for trial, rumors of his activities had been covered extensively in the national press: Most Americans and surely most Virginians in the jury pool at the trial were certain of Burr’s treachery.

Jefferson himself never doubted that Burr was a traitor. Indeed, on January 22, 1807, he had pronounced Burr guilty of treason to Congress and the entire nation—without a grand jury indictment. In condemning Burr publicly—in usurping the role of the grand jury and the trial jury—Jefferson acted largely on the basis of the testimony of General James Wilkinson, whose character Jefferson and his cabinet knew to be unreliable. Indeed, Wilkinson was widely suspected of being Burr’s coconspirator and also of being in the pay of Spain, allegations that should have made the president question the general’s veracity. Wilkinson’s duplicity came out during his appearance before the Richmond grand jury. Indeed, his testimony against Burr was so full of contradictions and misinformation that Wilkinson himself was nearly indicted.

Wilkinson’s confrontation with Burr in Marshall’s courtroom on June 15 also provided some lively entertainment. Wilkinson, the army’s commanding general, made his grand entrance, dressed ornately in a uniform reputedly of his own design.The young Washington Irving, who traveled from New York to Richmond to report on the trial for his brother’s newspaper, wrote: “Wilkinson strutted into court . . . swelling like a turkey-cock.” Burr “did not take notice of him until the judge directed the clerk to swear in General Wilkinson; at the mention of the name 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. . . . The whole look was over in an instant; but it was an admirable one. There was no appearance of study or constraint in it; no affectation of disdain or defiance; a slight expression of contempt played over his countenance.”

The general’s account to Jefferson was more self-serving. “My eyes darted a flash of indignation at the little traitor, on whom they continued fixed until I was called to the Book;— here, sir, I found my expectations verified—this lion-hearted, eagle-eyed Hero, jerking under the weight of conscious guilt, with haggard eyes in an effort to meet the indignant salutation of outraged honor; but it was in vain, his audacity failed him. He averted his face, grew pale, and affected passion to conceal his perturbation.”

Jefferson’s reliance on Wilkinson in pronouncing Burr guilty was a serious mistake, one that was compounded by the government’s reliance on the general as its chief witness in the Richmond trial.

A remarkable aspect of the trial—one unique in American history—was the president’s micromanagement of the prosecution from the White House. The reasons for Jefferson’s personal involvement are unclear. Generally speaking, he was reluctant to delegate authority, and he also may have lacked full confidence in the government’s lawyers. And since he had already declared Burr guilty, he may have felt compelled to prove himself right. In any case, Jefferson’s numerous letters to George Hay, the federal attorney who was nominally in charge, contain detailed instructions about trial strategy, evidence, and witness interrogation. Jefferson even forwarded a batch of blank pardons to be used, at Hay’s discretion, to elicit evidence from reluctant witnesses. One such was Erick Bollman, a Burr associate, who pointedly refused in open court to accept a pardon for the crime of treason, a crime that he clearly did not commit. Burr’s lawyers took the occasion to blast the prosecution—and the president.

Jefferson’s involvement, which became common knowledge during the trial, turned out to be one of Burr’s main lines of defense. It also provided some of the trial’s most dramatic moments, notably when Luther Martin, one of Burr’s lawyers, denounced the author of the Declaration of Independence for behaving like “a king of Great Britain” and for unleashing “the dogs of war, the hell hounds of persecution” against an innocent man for personal reasons.

Jefferson responded by suggesting to Hay that Martin himself was connected with Burr’s conspiracy and might be prosecuted “for misprision [concealment] of treason, at least.” Martin  was not indicted, but the president’s lawyers accused him of politicizing the case in order to divert attention from Burr. Martin—called “old brandy bottle” for obvious reasons, and “old law ledger” because of his mastery of legal doctrine—refused to back off. With good reason, Jefferson dubbed him the “Federal bull dog.”

Except for Martin and Burr, who was a superb trial lawyer himself and also the key strategist in his own defense, all the lawyers were Virginians. John Wickham, Burr’s go-to lawyer, was the acknowledged leader of the Virginia bar, and he was also one of John Marshall’s oldest friends. The star for the prosecution, who later became one of the country’s most respected lawyers, was William Wirt. His scathing portrait of Burr as the serpent in the garden of republican virtue was the rhetorical high point in the trial. The lawyers’ arguments were key attractions of the trial for spectators then and historians now.

President Jefferson’s personal intrusion in the Richmond proceedings unavoidably brought him into conflict with his old political foe, Chief Justice Marshall, who was sitting as trial judge for the federal circuit court in Richmond due to the requirement of the Federal Judiciary Act of 1789 that Supreme Court  justices ride circuit. Blennerhassett’s island in the Ohio River, where the levying of war (treason) allegedly took place, fell within the jurisdiction of the Virginia circuit court.

The president and the chief justice, who were distant cousins, had been ideological opponents since the violent party battles of the 1790s. As leader of the Virginia Federalists who supported the nationalist policies of presidents Washington and John Adams, Marshall abhorred the democratic, states’ rights, pro-French position of the new Democratic-Republican party being created by Jefferson and James Madison. When Jefferson won the presidency, departing President John Adams appointed Marshall chief justice, with the understanding that Marshall would make the Supreme Court a check on Jefferson’s radicalism. This set the stage for a major institutional showdown between Marshall and Jefferson—and thus between the executive and judicial branches of the federal government.

The first battle in the Constitution-defining war between them was Marbury v. Madison in 1803, the case remembered in American history for consolidating the Supreme Court’s power of judicial review. Jefferson, who insulted the Court by prohibiting government lawyers from arguing the case, was convinced that Marshall manipulated the law in order to claim the court’s power of review. In turn, Marshall was convinced that Jefferson was out to destroy the Supreme Court, and, in his opinion, he had berated the president for trying to do just that. Personal hatred had turned into a contest over the separation of powers.

If Marbury was the first constitutional battle between the president and the chief justice, then the Burr trial was the second. Not surprisingly, Jefferson was persuaded, even before the trial began, that Marshall would attempt to embarrass him by bending the law to free Burr. Before the trial was over, Jefferson was as interested in getting Marshall impeached as he was in getting Burr convicted.

With both houses of Congress and the majority of the American people in the president’s camp, Marshall had reason to fear impeachment. He also had reason to believe that the tidal wave of popular prejudice against Burr, opinion set in motion by a popular president, would make a fair trial hard to come by.

On June 24, following prolonged and raucous argument by the lawyers, the grand jury indicted Burr for treason, for levying war against the United States, an act which allegedly took place on December 10, 1806, on Blennerhassett’s island. The grand jury also indicted Burr for high misdemeanor, for organizing a military expedition against Spain in Mexico, in violation of the Neutrality Act of 1794.

Burr was tried separately on both charges and acquitted on both by a jury verdict. Jefferson then instructed Hay to bring Burr before Marshall once again—this time for events that took place following the episode on Blennerhassett’s island. In this trial after the trial, Marshall sat as a committing magistrate, whose sole responsibility was to decide whether there was sufficient evidence to order another trial. In fact, Marshall ordered Burr to appear in the federal district court for Ohio to face another grand jury. In turn, Burr privately denounced Marshall for bending to popular hysteria and instructed his lawyers that Marshall “be put right by strong language” or even “abuse.” One close observer of the trial speculated that Marshall aimed to destroy both Jefferson and Burr. Burr never showed up for trial in Ohio and the government quietly gave up the chase.

So the long ordeal ended with a whimper and without a single conviction. Burr was legally a free man, but most Americans, including the president who said so publicly, still considered him a traitor, and, what is worse, a traitor who had escaped the gallows. After four years of self-imposed exile in Europe, Burr returned to New York, where he remained a social outcast, a man without a country, as in the famous 1863 short story by Edward Everett Hale. Jefferson may have lost his case, but he succeeded in destroying Burr or at least in helping Burr destroy himself.

In all of its phases, the Richmond proceedings lasted seven months and, to the delight and frustration of historians, produced well over a thousand pages of stenographic trial reports. Chaos, exacerbated by party ideology and personal animosities, was never far from the surface. Several of the key lawyers, who had been friends or friendly rivals before the trial, became enemies before it was over. When Burr’s defense lawyer John Wickham accused Hay of being a puppet of the president, Hay took it as an insult to his honor and demanded a public apology, often the first step in the code of the duel. Even Marshall, one of Richmond’s favorite characters, got sucked into the political vortex. By the time the trial ended, counsel on both sides complained about Marshall’s conduct of the trial— good evidence, one might say, that he favored neither side. After the trial was over, a partisan mob in Baltimore hanged the chief justice in effigy and denounced him as a traitor.

Marshall described the case as the most “unpleasant” one “ever brought before a judge in this or perhaps in any country which affected to be governed by laws.” The case was also full of pitfalls. As chief justice presiding over the full Supreme Court in Washington, Marshall could consult his fellow justices about difficult questions of law; his opinions, though issued over his name, were, in fact, collective in nature. Sitting as trial judge in Richmond, he had to clarify complex matters of doctrine and trial practice on the spot and often without clear precedents to guide him. His rulings were his alone, a fact his critics fully appreciated.

Marshall’s enemies had a field day. Some modern historians as well—even those like Edward S. Corwin who greatly admired Marshall—considered the trial a blemish on his record.

In truth, Marshall made some mistakes. Permitting lawyers on both sides to ramble on too long and to play to the prejudices of the spectators were among them. At times, too, he inadvertently let his hostility to Jefferson show.

On one embarrassing occasion early in the proceedings, Marshall attended a dinner that was also attended by Burr, who was out on bail. The party was given by Marshall’s longtime friend John Wickham, which is undoubtedly why Marshall attended in the first place. But Wickham was also Burr’s lead counsel, which is why Marshall should have stayed home, as his wife Polly had advised him to do. Marshall deeply regretted his indiscretion, but the unforgiving partisan press across the nation lumped him with Burr and called Wickham’s party a “feast of treason.” Rumors circulated that Marshall and Wickham met privately and planned the outcome of the trial over a game of chess.

Regardless of his critics’ claims, Marshall’s overall conduct of the trial was a testament to both his character and his legal knowledge. Even with the specter of impeachment looming, with the hectoring press watching his every move, and with the jury pool predisposed against Burr, Marshall succeeded in granting the defendant a fair trial, and that, after all, was the main order of business.

At the most fundamental level, Marshall succeeded as a trial judge by keeping order in his courtroom, so that both sides had a chance to be heard. It was a chore that grew more difficult as the trial wore on and the lawyers’ tempers frayed, and the adversarial combat became passionate and personal. Marshall’s patience, firmness, and his coolness under fire, along with his reputation for integrity, carried him over the rough places. It helped immensely, too, that  he was the most respected lawyer in a room full of gifted lawyers. Marshall’s foes denounced him as a political judge who manipulated the law and steamrolled the jury to reach a predetermined verdict, but the trial record tells a different story.

Most important, Marshall’s major doctrinal rulings speak forcefully to his sense of judicial duty and his dedication to due process and the rule of law. First, Marshall insisted that Burr be tried only on the charge as formally stated in the indictment, that is to say, the charge of actually “levying war” as in Article III, Section 3 of the Constitution. The government, to clarify, charged Burr with levying  war, but in attempting to prove the charge, they persisted in using the more lax and indeterminate standards of proof for conspiring to levy war. Treason and the conspiracy to commit treason, Marshall ruled emphatically—and crucially—were two distinct crimes.

In deciding what evidence the jury could hear, Marshall also defined treason itself (actually levying war) narrowly; at the same time he emphasized the demanding constitutional standards of proof required for conviction (two witnesses to the same overt act). Marshall’s decision all but guaranteed that Burr would not be convicted. It also settled the meaning of levying war in the Constitution in a way that made it difficult for future presidents to use treason as an instrument for suppressing political dissent and eliminating political opponents.

In the largest sense, the conflict between the president and the chief justice was a battle over the meaning of separation of powers in the Constitution. Had Jefferson succeeded in impeaching Marshall, as he clearly aimed  to do, the future independence of the federal courts would have been irreparably diminished. And it was a close call: The historian Henry Adams claimed that Jefferson’s impeachment campaign would have succeeded had he not been distracted during the course of the trial by the Chesapeake-Leopard affair, which could well have led to war with England. Much more important, I argue, in explaining Jefferson’s failure to impeach Marshall was Marshall’s impressive performance as trial judge, against the odds, and above all, his powerful defense of due process and the rights of criminal  defendants.

In the campaign of history—to borrow a phrase from Justice Oliver Wendell Holmes—Marshall appreciated the strategic importance of occupying the high ground, especially if the enemy had all the heavy artillery. The ground doesn’t get higher than due process and the rule of law, and there Marshall chose to take his stand against executive overreach and popular hysteria. Ironically, by seeing that Burr received a fair trial, Marshall also saved Jefferson from having Burr’s blood on his hands.

Marshall’s defense of judicial independence was consistent with the intent of the Framers of the Constitution, and also consonant with the good sense of moderates in both parties, including the party of Jefferson. Perhaps John Adams said it best and most prophetically: “Our parties will perpetually produce such Characters [as Burr] and such revolutions and as our Legislature and Executive will be always under the Influence of the Prevailing Party, I say We have no Security, but in the total and absolute Independence of the Judges.”

While Marshall’s lawmaking accomplishments in the Burr trial deserve praise, it should be remembered, as Marshall  himself acknowledged several times during the trial, that he was aided every step of the way by the lawyers in the case. If their impetuosity and even their vanity gave him some grief during the trial, their remarkably brilliant law arguments—about English treason law, about the intent of the Framers, about the nature of constitutional government—also gave him a rich palette from which to paint. However, the final picture—fifteen rulings during the trial, including several major doctrinal holdings—were Marshall’s alone, expressed in his unique style and backed in the sweep of history by his reputation as the “great Chief Justice.”

Marshall’s major decisions in the Burr trial have stood the test of time, and perhaps none more conspicuously than his decision on June 13 to issue a subpoena duces tecum (a judicial writ ordering the recipient to produce evidence in his possession) to the president, ordering him to deliver documents that Burr had requested to prepare his defense. The gauntlet was thrown down. In issuing the subpoena, Marshall not only set forth the relevant principle of criminal law involved, but also elaborated the uniquely legal character and duties of the federal judiciary that justify its place of equality with the other branches of government.

Jefferson, of course, did not buy Marshall’s argument in favor of judicial independence. Jefferson also denied that he was legally obliged to obey the subpoena, but he did so nevertheless.

It was Marshall who had the last word, because his word stood as law in the records of the court, records that could be and were consulted by subsequent courts. And never were Marshall’s words more relevant than in the Watergate tapes case of United States v. Nixon (1974), when Chief Justice Warren Burger ordered President Richard Nixon to turn over the disputed tapes to the federal  prosecutor. Burger’s decision, as Professor Paul Freund has shown, rested squarely on Marshall’s subpoena ruling in United States v. Burr.

Of course, there were substantial differences between Nixon in Watergate and Jefferson in the Burr trial, the main one being that in Watergate, Nixon himself was on trial. Nevertheless, the similarities are striking, especially with regard to Nixon’s claim that the president was above the law. In his interview with David Frost, Nixon was asked whether a president “could do something illegal,” if he considered it to be in the nation’s interest. Nixon replied that “when the president does it, that means that it is not illegal.” Nixon appeared to be saying  that the president can, in certain circumstances, make his own law, whereas Jefferson declared that, if necessary, he could knowingly violate the law. Which option is worse is hard to say; both violate the guiding axiom of the Constitution: that ours is “a government of laws, and not of men.”

Jefferson’s decision to take the law into his own hands is one of the enduring mysteries of the trial; equally inexplicable is Burr’s behavior that brought him to Richmond in the first place. Accident, chance, and fortune no doubt explain much, but so does character. It was Burr’s arrogance and his sense of frustrated entitlement—frustrated by fate, by Alexander Hamilton, and by Jefferson—that led him to undertake his improbable western adventures.

To bring Burr down, Jefferson took the law into his own hands, not because Burr’s conspiracy actually threatened to break up the union, which Jefferson knew was never a possibility, but because Burr threatened to corrupt it. Burr’s character was fundamentally at odds with Jefferson’s vision of America’s revolution and his idealistic plans for the new nation. Jefferson famously declared that all men have a natural right to pursue happiness; Burr pursued his own happiness with a single-minded, unapologetic, and, in Jefferson’s mind, ruthlessly un-republican ambition. In Jefferson’s morally dichotomous calculus, Burr was a danger to the republic; in Jefferson’s personalized view of the presidency, it was his responsibility to eliminate the danger, even if it meant breaking the law. Burr brought out the worst in Jefferson, and Jefferson brought out the worst in Burr.

The spectators who witnessed the trial or read about it in the nation’s newspapers clearly understood the symbolic nature of the conflict between Burr and Jefferson. Contemporaries also were aware of the fundamental ideological differences separating the chief justice and the president. Put Marshall, Jefferson, and Burr in the rhetorically over-heated Richmond courtroom, and you have a republican morality play in which the main characters become iconic symbols in the culture wars of a new nation in the throes of defining itself.

R. Kent Newmyer is Professor of Law and History, University of Connecticut Law School. His article is based on his recent book, The Treason Trial of Aaron Burr: Law, Politics and the Character Wars of the New Nation (Cambridge University Press, 2012).

Since 1977, NEH has provided nearly $1.2 million in funding for work on the papers of Chief Justice John Marshall; Newmyer received an NEH grant in 1987 to study Chief Justice John Marshall and the Constitution.