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Acknowledgments
- R. Kent Newmyer, University of Connecticut
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- The Treason Trial of Aaron Burr
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1 - Jefferson and Burr on the Road to Richmond
- R. Kent Newmyer, University of Connecticut
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- The Treason Trial of Aaron Burr
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- 24 September 2012, pp 19-45
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Summary
“I never indeed thought him an honest, frank-dealing man, but considered him as a crooked gun, or other perverted machine, whose aim or shot you could never be sure of.”
Jefferson on Burr“Although I never thought so highly of his natural Talents or his acquired attainments, as many of both Parties have represented them, I never believed him to be a Fool. But he must be a Idiot or a Lunatick if he has really planned and Attempted to execute such a Project as is imputed to him.”
John Adams on Burr“… 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 had tryed him.”
John Adams on Jefferson on BurrHistorians looking to illustrate the way judicial lawmaking in the new nation was influenced by chance and contingency, human passions, follies and character quirks might well turn to the treason trial of Aaron Burr. To make the point the story should begin with Aaron Burr and Thomas Jefferson, because it was their mutual feelings of distrust and contempt and their intersecting political aspirations that set the trial in motion and set loose the political passions that influenced the proceedings.
The relationship between Jefferson and Burr began in the late 1790s, when both men were interested for their own reasons in driving the Federalist party of Washington and Adams from office. Whether Jefferson and Madison talked serious politics with Burr in 1791 on their famed botanical trip to New York is not clear. What became clear in the course of the decade, however, was that Burr proved himself to be the man most capable of delivering New York’s electoral votes in the upcoming presidential election of 1800. For his pivotal role in forging the New York–Virginia political axis, Burr won a place on the ballot with Jefferson. When New York’s electoral votes carried the Democratic Republican party to victory, Burr deserved a real share of the credit.
Epilogue
- R. Kent Newmyer, University of Connecticut
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- The Treason Trial of Aaron Burr
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- 24 September 2012, pp 180-214
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Summary
“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.”
John Adams, February 12, 1808“The courts of justice are the visible organs by which the legal profession is enabled to control the democracy.”
Alexis de Tocqueville, Democracy in AmericaGreat trials of state like the one in Richmond are the stuff of history, but they cannot be expected to settle the historical narrative. Still, such trials are expected to settle certain things: the yes-or-no guilt of the accused; the facts on the ground that called forth the law that brought the accused to court in the first place; and finally the law itself. Ideally, the law should be stated with enough clarity and authority to be accepted by the public as fair and binding.
After months of learned discourse by some of the best lawyers in America arguing before one of its greatest judges, the Burr trial settled none of these – at least none fully and convincingly. Instead of bringing closure and catharsis, the trial as concluded by the enigmatic verdict of the jury perpetuated the debate – about Burr’s innocence or guilt; about Jefferson’s role; about Marshall’s fairness; and indeed about the reliability of the legal process itself. Instead of generating one convincing narrative, the trial generated several – which is why it affords such an intriguing glimpse of early national history. The miracle is that out of the partisan moralizing and character bashing came some legal principles consonant with the fundamental character of the young republic.
The Treason Trial of Aaron Burr
- Law, Politics, and the Character Wars of the New Nation
- R. Kent Newmyer
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- 05 October 2012
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- 24 September 2012
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The Burr treason trial, one of the greatest criminal trials in American history, was significant for several reasons. The legal proceedings lasted seven months and featured some of the nation's best lawyers. It also pitted President Thomas Jefferson (who declared Burr guilty without the benefit of a trial and who masterminded the prosecution), Chief Justice John Marshall (who sat as a trial judge in the federal circuit court in Richmond) and former Vice President Aaron Burr (who was accused of planning to separate the western states from the Union) against each other. At issue, in addition to the life of Aaron Burr, were the rights of criminal defendants, the constitutional definition of treason and the meaning of separation of powers in the Constitution. Capturing the sheer drama of the long trial, Kent Newmyer's book sheds new light on the chaotic process by which lawyers, judges and politicians fashioned law for the new nation.
5 - Judging the Judge
- R. Kent Newmyer, University of Connecticut
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- The Treason Trial of Aaron Burr
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- 24 September 2012, pp 143-179
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Summary
“The nation will judge both the offender and judges for themselves.”
Jefferson to William B. Giles, April 20, 1807“…His Honor did not for two days understand either the questions or himself…”
Burr on Marshall, September 20, 1807“Our Treason Laws may be defective, but I believe Marshall’s Conduct strictly and correctly legal as the Laws now stand.”
John Adams to John Quincy Adams, February 12, 1808To judge Marshall’s performance as trial judge – to see him as his enemies saw him – one needs to remember that the great chief justice was not yet great in 1807. To be sure, he was a popular figure in Richmond, where he and his family had resided since 1780. Thanks to his bold diplomacy in the XYZ affair in 1798, he was also a celebrated hero. Those in a position to know, friend and foe alike, agreed that he was a uniquely gifted lawyer. As evidence of promised greatness, there was his opinion in Marbury v. Madison, but that opinion had not yet achieved iconic status and neither had the man who wrote it. Whether Marshall would be a great chief justice – or indeed, whether he would be the first chief justice to be impeached – was all yet to be determined.
Virginia Republicans, numerous and well placed in 1807 and spurred on by a popular president, had decided feelings about that question. They remembered Marshall as Virginia’s leading Federalist in the 1790s, a closet Hamiltonian named to head the Supreme Court by departing Federalist President John Adams to subvert President-elect Jefferson’s democratic “revolution”; not for a moment did they believe that a judicial robe neutralized Marshall’s partisan instincts. As for Marbury: Rather than a mark of genius, it was proof final of his aggrandizing agenda.
Contents
- R. Kent Newmyer, University of Connecticut
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- The Treason Trial of Aaron Burr
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- 24 September 2012, pp ix-x
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4 - Treason Law for America
- R. Kent Newmyer, University of Connecticut
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- The Treason Trial of Aaron Burr
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- 24 September 2012, pp 107-142
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Summary
“To a man of plain understanding it would seem to be a matter of little difficulty to decide what was meant in the constitution by levying of war; but the subtleties of lawyers and judges, invented in times of heat and turbulence, have involved the question in some obscurity.”
Judge William Cranch, dissenting in Bollman“A degree of eloquence seldom displayed on any occasion has embellished a solidity of argument and a depth of research by which the court has been greatly aided in forming the opinion it is about to deliver.”
John Marshall, Opinion delivered on August 31, 1807Although the Court’s second decision in Bollman (the first having dealt only with the question of whether it could issue a writ of habeas corpus) and U.S. v. Burr are regularly cited as foundational rulings on American treason law, the decisions taken singularly and in tandem are difficult to unscramble. Take Bollman for example. It was the first treason case to be decided by the Supreme Court, in contrast to the circuit court decisions in the 1790s. This fact alone entitles it to the prominent place it occupies. Nevertheless, several factors detract from its authority as a precedent. For one thing, the defendants, Bollman and Swartwout, were only indirectly connected with Burr’s enterprise, which meant that the facts did not allow counsel to argue the doctrinal questions fully. In addition, the decision was rendered by only four justices, who were themselves divided over some of the key issues. Whether for this reason or not, Marshall’s opinion, while it freed the prisoners, was not clear as to the meaning of “levying war” in Article III, Section 3. Therefore, rather than guiding the arguments in U.S. v. Burr in Richmond, the Bollman opinion became the central point in dispute.
As an authoritative statement of treason doctrine, U.S. v. Burr has its own disabilities, the main one being that the chief justice on circuit was speaking as a trial judge. As a result, his doctrinal pronouncements, as he admitted several times in the course of the trial, were technically bounded by the Supreme Court’s decision, and by his own opinion for the majority, in Bollman (despite its ambiguity). The result was that lawyers on both sides in Richmond put their own spin on Marshall’s Bollman opinion and of course urged him to say that he had said what they said he said.
2 - Jefferson and Marshall Square Off
- R. Kent Newmyer, University of Connecticut
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- The Treason Trial of Aaron Burr
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- 24 September 2012, pp 46-67
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Summary
“The worst of precedents may be established from the best of motives. We ought to be upon our guard lest our zeal for the public interest lead us to overstep the bounds of the law and the constitution; for although we may thereby bring one criminal to punishment, we may furnish the means by which an hundred innocent persons may suffer.”
Judge William Cranch dissenting, U.S. v. Bollman et al.The legal proceedings against Bollman and Swartwout – Jefferson’s personal effort to keep them in jail; the habeas corpus writs sued out on their behalf; their trial in the federal circuit court for the District of Columbia; and their appeal to the Supreme Court of the United States – have been overshadowed by the more dramatic trial in Richmond. What transpired in Washington in early 1807, however, was a dress rehearsal. Lawyers and judges clashed over the definition of treason. Matters of evidence that would ultimately surface in the Richmond trial were vetted. Defense and prosecution lawyers, some of whom would meet again in Richmond, took measure of one another. Finally, thanks to the legal transgressions of General Wilkinson in New Orleans and Jefferson’s personal involvement in the Bollman and Swartwout litigation in Washington, the president and the chief justice squared off once again. What happened was a replay of their confrontation in Marbury v. Madison; it was also a forecast of what was about to transpire in Burr’s treason trial in Richmond.
By the time Jefferson and Marshall clashed in Bollman, their intense dislike and distrust of one another was full-blown. It was also counterintuitive. As descendents of the Randolph family, both were members of Virginia’s ruling class. Both shared in the creation of the new nation – Marshall as a soldier in General Washington’s Continental Line and Jefferson as a statesman and spokesman of independence. In the partisan 1790s, however, they parted over the meaning of the Revolution they had jointly supported. Jefferson chose to see the Revolution as the dawning of a new era of liberty and political democracy embodied in state and local government. As a moderate Federalist, Marshall emphasized the conservative nature of the Revolution. For him the war against England was a struggle for self-government, not the first stage in a social revolution – in his words “a war of principle, against a system hostile to political liberty.”
Frontmatter
- R. Kent Newmyer, University of Connecticut
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- The Treason Trial of Aaron Burr
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Introduction
- R. Kent Newmyer, University of Connecticut
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- The Treason Trial of Aaron Burr
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Summary
A leading constitutional historian called the Burr treason trial “the greatest criminal trial in American history and one of the notable trials in the annals of the law.” Edward Corwin did not explain why the trial was great and notable but several reasons come to mind. For one thing it involved a three-way legal, ideological, and personal contest among three prominent statesmen of the early republic. The clash between President Thomas Jefferson and his former vice president Aaron Burr set the case in motion, gave it a highly personalized and emotional cast, and defined many of the legal issues that emerged during the trial. President Jefferson’s extensive and unprecedented involvement in the trial proceedings, in turn, brought him into conflict with his old enemy Chief Justice John Marshall, who was sitting as a trial judge in the federal circuit court in Richmond, Virginia. Given the three-way battle that raged in Marshall’s courtroom, it is not surprising that historians have found the trial irresistible – and this is not to mention the mysterious intentions of Burr himself which the trial never fully revealed.
In addition to the leading figures involved, the legal and constitutional issues in the trial – the definition of treason, the constitutional rights of criminal defendants, and the meaning of separation of powers in the Constitution – have attracted the attention of constitutional and legal historians. Major biographers of Burr, Jefferson, and Marshall have also felt obliged to address the role their subjects played in the trial. As for Burr, it is tempting to make the study of the trial a study, if not of Burr himself, then of the “Burr conspiracy”; two pioneering scholars who chose this approach are Walter F. McCaleb (a revised edition of whose 1903 book appeared in 1936, followed by a further revision in 1966), and Thomas P. Abernathys (The Burr Conspiracy, 1954). Two outstanding biographies of Burr, by Milton Lomask (1982) and Nancy Isenberg (2007), also discuss the trial at some length. Jefferson’s response to Burr’s conspiracy and his involvement in the Richmond proceedings are treated at length in Volume 5 of Dumas Malone’s biography of Jefferson (1962). Leonard Levy’s Jefferson and Civil Liberties (1963) focuses critically on Jefferson’s role in the events leading up to, and including, the trial.
3 - Legal Theater in Richmond
- R. Kent Newmyer, University of Connecticut
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- The Treason Trial of Aaron Burr
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Summary
“The Drama under rehearsal at the Richmond Theatre, first reported to be a Farce, is now said to be of a new species of Melo-Drama.”
Virginia Argus, June 17, 1807“…I want the jury, this audience and all the world to know and be impressed with what are the rights of the accused.”
Edmund Randolph“…two thirds of our speeches have been addressed to the people…”
George Hay to Jefferson, June 14, 1807While the president was mobilizing the nation against him in late 1806 and early 1807, Burr was setting his plans in motion in the West. Intimations of trouble came when he was twice presented to federal grand juries: first in November 1806 in Kentucky for a conspiracy to revolutionize the western states; and then in February 1807 in the Mississippi Territory, this time for fomenting secession. Both grand juries refused to indict, but Burr’s luck ran out in Mississippi. When district judge Thomas Rodney, the father of Jefferson’s Attorney General, got word of Jefferson’s proclamation, he ordered Burr to appear in court for further interrogation. Burr, aware at last that the president was out to get him, bade a hasty farewell to his young followers and headed for the woods – a wanted man with a reward on his head. He was arrested near the tiny town of Wakefield in the Mississippi Territory, taken under armed guard to Fort Stoddard and thence for several hundred miles through the southwest wilderness to Richmond, where he arrived in the evening of March 26.
Things looked bleak. He had been branded a traitor by the president he helped elevate to office and with whom he served ably as vice president for four years. A combat officer of the Revolution who served with distinction, he had been hunted down and collared like a common horse thief. He was down and out, exhausted and bedraggled. Rather than leading a victorious army into Mexico City, he entered Richmond under armed guard – the object of idle curiosity (at best) or outright hatred. On March 30, he stood before John Marshall in the Eagle Tavern for arraignment, charged with betraying the country they both fought to create. The first act of “the far famed trial” was about to unfold.
Index
- R. Kent Newmyer, University of Connecticut
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- The Treason Trial of Aaron Burr
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Chronology of the Conspiracy and Associated Trial Proceedings
- R. Kent Newmyer, University of Connecticut
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- The Treason Trial of Aaron Burr
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1805
*March 2, 1805: Burr’s Farewell Address to the U.S. Senate
*April–October 1805: Burr travels down the Ohio and Mississippi Rivers to New Orleans and back, visiting leading politicians along the way in order to gauge popular attachment to the Union and popular support for a military operation against Spanish territory.
*Late November 1805: Burr meets privately with Jefferson. No record of their conversation, but Jefferson knew of Burr’s western trip and the rumors surrounding it. Jefferson apparently does not warn Burr about his activities in the West.
1806
* Late March 1806: Burr meets again with Jefferson, seemingly in a futile effort to extract a political appointment. Again no warning to Burr.
*Winter–Spring 1806: Burr’s plans take shape for a military expedition against Spanish possessions, presumably in case of a war with Spain . Burr moves to acquire land on the Washita River to be settled by his men as a contingency plan in case there is no war.
*Summer 1806: Burr contacts friends in the East to raise money for his expedition , which now seems likely because of apparent Spanish military movements against American territory in the Southwest .
Prologue - A Mind-Jostling Trial
- R. Kent Newmyer, University of Connecticut
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- The Treason Trial of Aaron Burr
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Summary
“There never was such a trial from the beginning of the world to this day!”
George Hay“The far famed trial of Aaron Burr…has jostled the public mind from one end of the Union to the other…”
Richard Bates, September 20, 1807Americans in 1807, proud of their hard-won status as a nation among nations, were prone to exaggerate their own importance. Thus could George Hay, President Jefferson’s chief prosecutor in the Burr treason trial, make his extravagant claim. The world at large, of course, took no notice of what was transpiring in Chief Justice Marshall’s circuit court in Richmond. Such was decidedly not the case, however, with the several thousand people who swarmed into town to catch the action. Nor was it true of the tens of thousands across the country who followed the sensationalist coverage of the trial in the partisan newspapers of the day. What Americans saw and read about – what “jostled the public mind” – was in fact one of the most dramatic trials in American history, one that pitted the president against the chief justice of the United States, that saw some of America’s finest lawyers locked in seven months of legal and personal combat, and featured a defendant whose fall from grace remains an enduring mystery.