The Treason Trial of Aaron Burr by Ken Newmyer

Dr. Newmyer’s recent book on the treason trial of Aaron Burr is a densely packed, extremely well-written analysis of one of the most important trials in American history.  Ironically, it is a trial that the vast majority of Americans probably have absolutely no knowledge of.

This trial was more than just a contest between the prosecution and the defense.  The President of the United States sought to micromanage the prosecution personally. Revolutionary War hero John Marshall sat, not in his capacity as Chief Justice of the Supreme Court but as a Circuit Court judge in Virginia.  The accused, also a Revolutionary War veteran, was a former Vice President for the very man who sought his conviction.  General Wilkinson, the main witness for the prosecution is a character whose own loyalties and actions are suspect.  Lawyers involved on either side of the case included notable names like Edmund Randolph, Luther Martin, and Attorney General Caesar Rodney. Even former President John Adams weighed in with his opinion.  It was an interesting time and fantastic cast of characters.

Newmyer weaves a fascinating narrative about the players on this stage, giving background about the participants as well as the events leading up to the trial.  Most importantly, he shows why it was significant and explores its ramifications up to and including the 20th Century.

Some of the reasons why this trial was so important have long been forgotten; their significance now is taken for granted.  (Like much else about the founding of United States.)  Before diving into a few of these, it’s probably prudent to provide a brief overview of what Burr was accused of doing.

From Wikipedia:

The Burr conspiracy in the beginning of the 19th century was a suspected treasonous cabal of planters, politicians, and army officers allegedly led by former U.S. Vice President Aaron Burr. According to the accusations against him, Burr’s goal was to create an independent nation in the center of North America and/or the Southwest and parts of Mexico. Burr’s explanation: To take possession of, and farm, 40,000 acres (160 km²) in the Texas Territory leased to him by the Spanish. When the expected war with Spain broke out, his accusers said he would fight with his armed “farmers,” to seize some lands he could conquer in the war.

U.S. President Thomas Jefferson and others had Burr arrested and indicted for treason with no firm evidence put forward. Burr’s true intentions are still considered unclear to historians, some of whom claim he intended to take parts of Texas and some or all of the Louisiana Purchase for himself.

…

Burr was charged with treason for assembling an armed force to take New Orleans and separate the Western from the Atlantic states. He was also charged with high misdemeanor for sending a military expedition against territories belonging to Spain.

Many aspects of the conspiracy are still hotly debated by historians.  However, the point of Newmyer’s book is neither to exonerate or convict Burr in the mind of his reader.  Instead, it is an analysis of the trial itself and its effect on the fledgling government of the United States.

This is what makes the trial significant as well as interesting.  Remember, the US government began operating under its Constitutional charter in 1789 after ratification.  Many of the Founders were still alive and involved in the new government in January of 1807, when Jefferson stood before Congress and accused Burr of treason.  The hallmark of American jurisprudence, that the accused was innocent until proven guilty, had yet to be firmly instantiated into the American legal system in practice as well as principle.  Thus, a sitting President asserting the guilt of a private citizen might not have seemed as unusual as it does (should*) today.  While there would be other cases that demonstrated the principle of an independent judiciary (McCulloch v Maryland in 1819),  Marbury v Madison was not a decision much to the liking of Jefferson and his compatriots.  In furtherance of this principle of Judicial separation and to provide a bulwark against the radical Republicans, John Adams had appointed John Marshall to the Supreme Court.  Thus, there was longstanding animosity between Marshall and Jefferson.

In the opinion of this reviewer, Jefferson does not fare well in the story that Newmyer tells, although Newmyer does his best to simply relate the facts and circumstances surrounding a trial which produced well over 1000 pages of stenographic reporting.  The trial placed Jefferson and Marshall on opposite sides of their own political philosophies.  Marshall, the Federalist, ended up defending the republican principles that Jefferson purported to support so strongly, among these, trial by jury and the right of Habeus Corpus.  Jefferson, on the other hand, did not want such republican legal niceties to factor in to convicting Burr.  Marshall eventually had to subpoena the very documents that Jefferson based his accusations upon.  Should he decline to comply, Marshall threatened to subpoena the President himself.  It was a game of brinksmanship between the Executive and Judicial Branches to see which would prevail.  Jefferson finally produced the documents.** Jefferson tried to claim that national security prohibited him from providing them to the defense.  It wouldn’t be the first time Jefferson sought to act as judge and jury in the name of the public good.  Only a few years later Jefferson would argue:

A strict observance of the written laws is doubtless one of the highest duties of a good citizen, but not the highest.  The laws of necessity, of self-preservation, of saving the country when in danger, are of higher obligation.  To lose our country by scrupulous adherence to written law, would be to lose the law itself … thus absurdly sacrificing the end to the means.

Such was his logic, undoubtedly in his extra-constitutional purchase of the Louisiana Territory.  Jefferson was used to ruling by fiat when he felt he was in the right.  He was not afraid to exercise power as he showed a few years later in arguing for the execution of some perceived traitors caught violating his failed embargo act by smuggling lumber to Canada,

If all these people are convicted, there will be too many to be punished with death.  My hope is that they [the US Court in Burlington, where the case was being tried] will send me full statements of every man’s case, that the most guilty may be marked as examples, and the less so suffer long imprisonment under reprieves from time to time.

Or as he told Gallatin,

Congress must legalize all means which may be necessary to obtain its end. (emphasis  is Jefferson’s)

In this case, he felt that Burr had to die – the punishment for treason – for the good of the country.  However, some suggest that his long-standing animosity against Burr, may have clouded his judgement.***

If Jefferson and Burr’s reputations are tarnished by the trial (for Jefferson) and by the indictment (for Burr), the other participants in this high drama fared much better.  The lawyers for both the prosecution and the defense did much to establish legal precedent and fill in the blanks about the rule of law and separation of powers.

When this trial took place, there was very little American precedent to draw upon.   Consequently both sides made heavy use of English law, at times interpreting the same statute**** in different ways to support their cases.

In many ways, the lawyers and John Marshall came out the best after the trial was over.  Marshall was one of the best Chief Justices of the Supreme Court the country ever had, and the lawyers involved demonstrated a level erudition and learning seldom matched since.  A great deal of Constitutional law was developed as a result of this trial.

Newmyer’s book is surprisingly accessible despite its academic nature and this review certainly does not do it “justice.”

*Some things naturally come to mind concerning the actions of Mr. Obama with regard to this type of behavior.  Take for example Mr. Obama’s comments about George Zimmerman or the Cambridge Police.  Although one might reasonably argue that President Jefferson was standing on more solid ground than Mr. Obama, when he presumed to prejudge Burr.  However, John Adams didn’t think so.

“… Mr. Jefferson has been too hasty in his Message in which he has denounced him [Burr] by Name and pronounced him guilty.  But if his guilt is as clear as the Noon day sun, the first Magistrate ought not to have pronounced it so before a Jury as tried him.”

**Newmyer provides a lot of interesting facts about an encrypted letter, the basis of the government’s case against Burr.  The decrypted version did not match the original but was edited by  the prime witness for the prosecution, Wilkinson.

***Jefferson never forgave Burr for not gracefully conceding to him during the presidential election of 1800.

When the electoral ballots were opened and counted on February 11, 1801, it turned out that the certificate of election from Georgia was defective; while it was clear that the electors had cast their votes for Jefferson and Burr, the certificate did not take the constitutionally mandated form of a “List of all the Persons voted for, and of the Number of Votes for each”. Vice-President Jefferson, who was counting the votes in his role as President of the Senate, immediately counted the votes from Georgia as votes for Jefferson and Burr. No objections were raised. If disputed, Jefferson and Burr would have lost 4 electoral votes, leaving them with 69 electoral votes each. The counting of the votes would have failed to result in a majority of 70 votes for any of the four candidates, causing a constitutionally mandated Congressional runoff among the top five finishers. Instead, the total number of votes for Jefferson and Burr was 73, a majority of the total, but a tie between them.  Wikipedia

It took 36 ballots in Congress before Hamilton intervened with his Federalist colleagues in the House and Jefferson was elected President.

**** The Treason Statute 25 – Edward III of 1351 was frequently cited.