September 1, 1807—Aaron Burr, former Vice-President, dodged a danger greater than his infamous duel with Alexander Hamilton when a Richmond jury acquitted him of treason against the United States. For President Thomas Jefferson, who had thrown the full machinery of the government in the prosecution of his onetime running mate, the acquittal stung even more because the case was tried by his cousin and enemy, John Marshall, Chief Justice of the Supreme Court.
One might well ask why Jefferson was at such pains to continue a case that a grand jury had previously decided was without merit. But the scheme, as set out, was extraordinary: Burr, it was alleged, in a desperate attempt to revive his dead political career, wanted to lead an army south, separate the Western United States (just acquired in the Louisiana Purchase), then proceed to Mexico, where he would set up a separate nation with him as king, emperor, or some other potentate. It struck the Virginian as the same sort of conniving that almost made Burr, the Vice-Presidential candidate in the election of 1800, almost beating out the man who was supposed to be his boss when the election was thrown into the House of Representatives.
The question also arises as to whether the President wanted to bag an additional prize besides Burr. For the past four years, when the Federalist Marshall served notice on the Democratic-Republicans, in Marbury v. Madison, that the power of judicial review gave the Supreme Court the right to declare acts of Congress unconstitutional, Jefferson had eyed every opportunity to catch his cousin Marshall in a mistake. Marshall hadn’t provided that chance at the time, but the stakes in the Burr trial were enormous and, consequently, anything could happen.
Over the years, some observers wondered why the Jefferson Administration would try such an important case in Richmond, where Marshall held jurisdiction as presiding judge in the federal circuit (Supreme Court justices heard cases on the circuit until the late 1890s), in a conspiracy case stretching from Kentucky down to New Orleans.
But, in a case with such high stakes, every opinion of its magistrate would be closely watched and itself judged. Jefferson was counting on public opinion to surge against Marshall, in the event of an adverse ruling or rulings: “They will see that one of the great coordinate branches of the government, setting itself in opposition to the other two and to the common sense of the nation, proclaims impunity to that class of offenders which endeavors to overturn the Constitution, and are themselves protected in it by the Constitution itself; for impeachment is a farce which will not be tried again,” he wrote Virginia Senator William Giles.
In History of the United States of America During the Administrations of Thomas Jefferson, Henry Adams (great-grandson of the President’s longtime friend, then bitter enemy, John Adams) aptly summarized Jefferson’s feelings in that last sentence: “In substance Jefferson said that if Marshall should suffer Burr to escape, Marshall himself should be removed from office.” Indeed, the principal government attorney in the case, George Hay, made that very threat amid the trial.
Everybody wanted to come to the Virginia State Capitol in Richmond for the proxy battle that Burr had unwittingly furnished Jefferson and Marshall. Among those who did come were Andrew Jackson (whom Burr had tried to enlist in his scheme); Winfield Scott, then a 20-year-old soldier embarking on the career that would make him the greatest American general between the Revolution and the Civil War; and Washington Irving, already attracting notice as a witty observer of his country.
Irving was among those offended by one of Marshall’s actions early in the proceedings. The Chief Justice had shown up at a dinner also attended by one of Burr’s attorneys and the defendant himself. The New York author, judging this attendance “grossly indecent,” wondered if Marshall had forgotten one of the elementary tenets of the law: “that the administration of justice should not only be pure but unsuspected” (emphasis in the original).
That incident outraged Democratic-Republicans, but Burr’s sympathizers were no less angry about Jefferson’s initial announcement about the discovery of the conspiracy: “Of [Burr’s] guilt there can be no doubt,” he had written.
It might be said, then, that the idea of impartiality, in what Henry Adams called “the most important and difficult State prosecution ever tried under Executive authority,” had gone missing by both sides.
It is doubtful whether the early American republic had witnessed so many famous or well-connected people representing the prosecution and the defense. Caesar Rodney, just confirmed as Attorney-General, was immediately thrown into this complicated case. With so many of his duties keeping in Washington, he farmed out the day-to-day running of the case to William Wirt (himself a future Attorney-General); Alexander McRae, lieutenant-governor of Virginia; and George Hay, son-in-law of Jefferson’s protégé, James Monroe.
The lackluster ability of McRae and Hay would prove no match for the high-powered talent representing Burr. Edmund Randolph had served as Washington’s Attorney General and Secretary of State. His gravitas was balanced by the suavity of John Wickham and Benjamin Botts. Last was the flamboyant, alcoholic Luther Martin, a brilliant opponent of Jefferson’s who had already saved one enemy of the President, Supreme Court Justice Samuel Chase, at his impeachment trial.
The prosecution faced several obstacles that, in the end, proved fatal:
*The Constitution’s insistence on what the presence of two witnesses to treason. There was one problem with the alleged crime that landed the Burr case in Marshall’s circuit to begin with: It took place on an island in the Ohio River owned by the Irish immigrant Harman Blennerhassett. The only trouble was that, though the men Burr had recruited had all shown up, Burr was hundreds of miles away.
*Delays in gathering materials. The “conspiracy,” the government alleged, occurred in places such as Lexington, Nashville, Fort Massac, and Chickasaw Bluffs, along with Blennerhassett’s island. This required that materials and testimony had to be gathered in these places, then brought back to Richmond—all at a time when transportation was not well advanced. (Robert Fulton had only just demonstrated the value of his steamboat that year.)
*The government’s star witness had serious credibility problems. Of all the famous people connected to the case, the most stunning might have been General James Wilkinson, the governor of the Louisiana Territory who, it was said, Burr had tried to draw into his scheme. Only one problem: Many wondered what Wilkinson himself was up to. They were right to be skeptical. At the time, Wilkinson—then commander in chief of the U.S. Army—had barely managed not to be indicted himself for his part with Burr. What nobody knew at the time was that, for two decades, he had also been a paid, secret double agent in the employ of the King of Spain.
A couple of Marshall rulings during the case would have serious implications for two Presidents in the late 20th century, as they found themselves in legal trouble. Martin, passionately disputing Jefferson’s prejudgment of the case, pointedly asked if his client did not have all the more right for any and all materials to save himself from the death penalty. Couldn’t he require the President to yield up all important documents in the case? Couldn’t he even require the President’s testimony?
Hay had claimed that the President could be required to do so as a private citizen, but not as President. Marshall disagreed. To claim a special exemption from the President would place him on the level of a king (a charge guaranteed to rankle the anti-monarchist Jefferson). Moreover, the President’s business in Washington was not so pressing that he could not testify (raising Jefferson’s fury to even greater heights, at the implication that he really was not terribly busy, even at Monticello). There was one way that Jefferson could avoid the need to testify in person, Marshall explained: Simply provide the necessary materials requested by the defense. Accordingly, Marshall sided with Jefferson’s motion for a subpoena duces tecum to be issued to Jefferson.
The faceoff between Marshall and Jefferson over what the President could be compelled to provide at trial formed an important precedent in the issue of executive privilege. That issue would reach its most dire points when Richard Nixon and Bill Clinton were required either to yield materials or testify themselves in the Watergate and sexual harassment trials that threatened their Presidencies.
On August 30, only three days after the jury had been sworn in and a dozen witnesses had testified, Burr’s defense team moved to exclude any testimony that went beyond the main point of the treason charge, that Burr chose to levy war on Blennerhassett's Island on December 10, 1806.This was the heart of the indictment, and it would be gutted if Marshall upheld the motion. On August 31, that is exactly what the Chief Justice did.
The next day, Hay told the court that he could not move ahead with the case, and the jury, after deliberating a mere 20 minutes, gave the prosecution its expected drubbing. But, as with so much else in this case, it was more complicated than that. The jury returned a finding of “not proved to be guilty under this indictment by any evidence submitted to us.” It was as if they smelled something fishy going on at Blennerhassett's Island and wanted to state so somehow. Marshall, for the sake of the record, had the verdict changed simply to “not guilty.” Burr would have to do with a misdemeanor charge for the next couple of months, but the main threat to him from the capital charge was over.
Burr had escaped a guilty sentence, but he had to leave the country for several years, waiting for tempers to cool before he could come home. He would live for nearly another 30 years, but his career as a public man was effectively over. As usual with him, nobody can be quite sure if he was simply being his old opportunistic self in separating some of Spain’s lands in the Southwest or if he also wanted to include new lands from the Louisiana Purchase in the bargain.
Jefferson, who was close to the pinnacle of his power and influence when Burr had first been seized, had, by the fall, gotten Congress to pass an Embargo Act that shut down trading with Britain and France, in an effort to avoid the impressment seizures by British forces. The legislation, hugely controversial, dampened any influence he might have exerted against Marshall.
Marshall, having rendered an opinion that would form part of the Supreme Court’s set of precedents concerning treason and Presidential power, would survive his cousin Jefferson’s rage to stay on the court for another 28 years. His opinions went a long way toward establishing the cohesion of the Union. But he had already established conclusively, in the Burr case, that he was not to be intimidated, even by a district attorney arguing the President’s case hinting strongly that he could be impeached.
Marshall’s response to that not-so-veiled threat, on August 31, would ring through the next two centuries as the court’s own declaration of independence from the other two branches: “That this Court dares not usurp power is most true; that this Court dares not shrink from its duty is not less true.”