Chapter XI: Trial of Aaron Burr for High Treason (1806-1807)

It was before Chief Justice Marshall that Aaron Burr, late Vice-President of the United States, was tried in the Circuit Court of the United States held in Richmond, Virginia, at the spring term of 1807. Burr was indicted for the crime of high treason, in levying war against the United States, and for a misdemeanor in preparing a military expedition against Mexico, then a territory of the king of Spain, with whom the United States was at peace. This event was the most remarkable and imposing of any which up to that time had marked the judicial annals of our country.

Whatever may be thought of the guilt or innocence of the accused, and of the real purpose of the organized expedition which was actually set on foot by him on the soil of the United States, whether it was designed to effect a dismemberment of the American Union or only to wrest Mexico from Spain, the boldness of the enterprise, the ambition and ability of the leader, and the high rank and station of its alleged friends and promoters, invested the project with extraordinary interest. Burr had lately been a candidate for the presidency of the United States, and had come within one electoral vote of being chosen. After a long struggle, which it is not necessary here to describe, Mr. Jefferson was elected president, and Burr became the vice-president, and as president of the Senate he had so acquitted himself as to add to his already high reputation. He stood well as a soldier by reason of his services in the war for independence ; and he was widely known as a successful and able lawyer. His conception, however, of the ethics of his practice may be inferred from his definition of law, namely, “Whatever is boldly asserted and plausibly maintained.” In short, in all the aspects of his public character he was astute, able, and accomplished. Although of small stature, he was remarkable in public life for the commanding dignity of his manners and his eloquent oratory, and in private for an ease and gracefulness of demeanor which attracted the regards of men and dazzled and captivated the other sex. A contemporary historian [1] thus describes him: “He was brave, affable, munificent, of indomitable energy, of signal perseverance. In his own person he combined two opposite natures. He was studious, but insinuating; dignified, yet seductive; success did not intoxicate, nor reverse dismay him. On the other hand, he was profligate in morals, public and private; selfish and artful, a master in dissimulation, treacherous, cold-hearted, subtle, intriguing, full of promise, a skeptic in honesty, a scorner of all things noble and good, from whom good men shrank in mistrust as from a cold and glittering serpent.” His duel with Hamilton and its fatal end occurred on the 11th of July, 1804, while he was vice-president, and proved the fruitful source of all the subsequent calamities, social, political, and personal, which marked him in after life as a doomed man, in spite of his gifts and accomplishments. The Federalists hated him for slaying their great leader, and the Republicans could not approve the manner of it, while they were further suspicious and incensed against him by reason of warm and unfair competition with Mr. Jefferson for the presidency. Burr, thus disowned and disliked by his former associates in New Jersey and New York especially, where indictments were still pending against him, began naturally to regard himself as without home or country, and resolved to seek another sphere in which he should find new ties and a free scope for that restless ambition which was the consuming fever of his life. This opportunity seemed to open before him in the almost belligerent relations now existing between Spain and the United States, growing out of the frequent incursions and hostile collisions between the citizens of these bordering territories, the “border ruffians” of that day, and stimulated by the ardent desire of the Americans to drive Spain from all foothold on this continent, and to get possession of the rich and attractive provinces of Mexico. The brilliantly successful career of Napoleon Bonaparte in Europe, mounting then to the pinnacle of fame by the splendor of his genius in civil and military achievement, was generally supposed to fire Burr’s ambition, and feed the dream of romance which seemed to invite him to imitate such a career on the broad field of this Western Continent. To invade Mexico, and, like Cortes and his Castilians of old, to enrich themselves with wealth and booty, and, in splendid luxury, to “revel in the halls of the Montezumas,” seemed a feasible scheme to bold and reckless men. Even some who had wealth and high social position were induced to contribute of their means to the military chest of a leader who had a singular power of attracting men.

In pursuance of his plans, which seemed all to point to the invasion and conquest of Mexico, Burr, with characteristic energy, set out in the spring of 1805 to the Western country on a tour of inspection and preparation. He was indefatigable in pushing forward his schemes. The war with Spain, apparently imminent, might enable him to proceed without a violation of laws or treaties. The Western men, in their usual adventurous spirit, were ready to join in an enterprise which promised such rich rewards, and which might, in due time, be openly favored by the national government. They so incited Burr that, although the probability of war between Spain and the United States began to fade away, yet he none the less zealously pushed on his preparations. He contracted for the construction on the Ohio River of a large number of transports for his “free companions,” and designated Blennerhassett’s Island, in the Ohio River, and within the jurisdiction of the State of Virginia, as a place of rendezvous for his Eastern followers, and as the main depot of stores and supplies. Here accordingly was actually assembled a force of some thirty or forty men, the nucleus of his future army, who came armed with guns and pistols, which were worn, according to the custom of that country, by all citizens when they went from home. To provide for the contingency of the failure of his Mexican project, and as an alternative refuge, Burr bought four hundred thousand acres of land on the banks of the Wichita River in Texas. This region he proposed to maintain and fortify. Thus he was enabled to offer his followers the certainty of homes and rich lands, and to afford color to the pretension that his expedition was an agricultural and commercial enterprise, and therefore, of course, peaceful.

About this time Colonel Swartwout of New York, who seems to have been Burr’s chief of staff, arrived in the camp of General Wilkinson at Natchez, in Mississippi, bearing a letter in cipher from Burr to Wilkinson, in which Burr disclosed the particulars of the pending movement down the Ohio and Mississippi en route to New Orleans and thence to Mexico. Wilkinson and Burr had been comrades in the Revolutionary war, and had continued intimate and confidential friends. Burr had been Wilkinson’s guest on his recent visit to the West, and was supposed to have conferred with him fully as to his projects. At least from the tenor of this cipher and other letters it appeared that he believed that he had secured Wilkinson’s hearty cooperation. Wilkinson was at that time commander-in-chief of the United States army and military governor of the newly-acquired territory of Louisiana. The letter, which was long, contained the following paragraphs:

“I, Aaron Burr, have obtained funds and have actually commenced the enterprise. … It will be a host of choice spirits. Wilkinson shall be second to Burr only… . Wilkinson shall dictate the rank and promotion of his officers. Burr will proceed westward by the first of August, never more to return… . Send forth an intelligent and confidential friend with whom Burr may confer. He shall return immediately with further interesting details. This is essential to concert and harmony of movement… .”

“Burr’s plan is … to be at Natchez between the 5th and 15th of December, there to meet Wilkinson… . Draw on Burr for all expenses, etc. The people of the country to which we are going are prepared to receive us. Their agents, now with Burr, say that if we will protect their religion and will not subject them to a foreign power, in three weeks all will be settled.”

Wilkinson was greatly agitated by this letter, and seemed at first to hesitate as to his line of conduct. He had actually written and dispatched a letter to Burr, in which he was suspected of having promised an active, even personal cooperation in the enterprise. But, on second thought, he personally pursued and overtook the messenger, and intercepted and destroyed the letter. He then resolved to disclose and denounce the whole scheme to the government, denominating it a treasonable conspiracy to dismember the Union. Accordingly he forthwith sent one of his officers with the letter from Burr, duly interpreted from the cipher, accompanied by his own affidavit alleging Burr’s guilt. These he sent directly to President Jefferson. They were delivered on the 25th of November. Then came the explosion. On the 27th of November the President issued his proclamation denouncing the scheme of conspiracy, and sent it on the wings of the wind, filling the country with consternation and alarm, in consequence of the general belief that the conspiracy extended from one end of the Union to the other. It was remarkable, however, that Burr’s name was not mentioned, either in Wilkinson’s dispatch or Jefferson’s proclamation. Wilkinson indeed expressly, though falsely, declared that he did not know who was the prime mover of the conspiracy. By some means, it was soon after reported and known that it was an expedition of Colonel Burr against which the proclamation was leveled.

Wilkinson immediately seized Swartwout, Bollman, Ogden, and General Adair of Kentucky, as emissaries of Burr, and sent them under guard to Washington. A large reward was offered for the arrest of Burr, who thereupon voluntarily came forward before the United States courts and demanded a trial. But no judge would commit him and no grand jury would indict him, there being no evidence of treasonable designs. He resolved, however, to make his way to Pensacola, where he hoped to meet a British man-of-war on which he might take refuge. In this effort he was arrested in Alabama by Major Perkins, and hurried forward to Virginia under a small military escort, without being offered any opportunity of bringing his case before the courts, which had, so far, afforded him immunity. He arrived, in this way, at Richmond on the 26th of March, 1807, and was taken to the Eagle Hotel, still under guard, and brought before Chief Justice Marshall for examination preliminary to commitment, which was strenuously opposed by Burr and his counsel. After an examination and arguments, which consumed three days, the chief justice decided to commit the prisoner on the charge of misdemeanor for having set on foot a military expedition against Mexico, then part of the dominions of the King of Spain, with whom the United States was at peace. The charge of high treason was reserved for investigation by the grand jury. Thus Burr was freed from any immediate risk of imprisonment, and, being entitled to bail, five gentlemen of Richmond gave bail bonds in the sum of ten thousand dollars for his appearance at the ensuing May term of the United States court; whereupon he was discharged from custody.

On the opening of the court on the 22d of May, 1807, the accused promptly appeared, attended by his counsel. These were Edmund Randolph, a learned, experienced, and able lawyer, who had been attorney-general and secretary of state under Washington, and governor and attorney-general of Virginia; John Wickham, a man of learning, wit, eloquence, logic, and sarcasm, of a fine presence and persuasive manner, perhaps the ablest lawyer then practicing at the Richmond bar ; Benjamin Botts, though a young man, already distinguished; Charles Lee, formerly attorney-general of the United States; and John Baker, familiarly called “ Jack” Baker, a useful man in such a position, and a popular favorite on account of his social qualities. These were supplemented, later on in the trial, by Luther Martin of Maryland. Burr himself, however, was undoubtedly the leader in the defense. His long and successful practice at the bar had made him perfectly at home in a court-room, and such was his self-possession, his calm dignity, and his immovable composure that he never lost his temper, nor was betrayed into mistakes. His speeches were short, but concise, and always to the point, and with the law on his side, and before a firm and fearless judge, he was equal to all the demands of the situation. Richmond, then a town of six thousand inhabitants, was crowded with visitors. Throngs of citizens, not only from Virginia, but from other States, were drawn thither by the celebrity of the occasion, and to witness the opening scenes of the most noteworthy trial which had yet marked the history of the republic. Including lawyers from abroad, jurymen, and witnesses, it was estimated that not less than two hundred persons were in Richmond who had some official connection with the trial. The government, as prosecutor, was ably represented by George Hay, United States district attorney; Alexander McCrae, an experienced and able lawyer of the Richmond bar, then lieutenant-governor of the State; and, on the special retainer of President Jefferson, by the gifted, accomplished, and eloquent William Wirt, then rising to the zenith of forensic fame. The court consisted of two judges: John Marshall, chief justice of the Supreme Court of the United States; and Cyrus Griffin, judge of the District Court of Virginia.

When the grand jury were called, before whom the indictment was to be laid, it soon became evident that there had been a very extensive prejudgment of the case in the public mind; for almost all the jurors, on being interrogated, admitted that the proclamation of the President and the depositions of General Eaton and General Wilkinson had strongly impressed them against the prisoner. The panel of the grand jury which had been returned by the marshal presented a list of the most intelligent, upright, and honorable citizens of the State. No grand jury was ever convened in Virginia or elsewhere, composed of men of superior character and intelligence. After a very thorough sifting of the original panel, and the selection of substitutes for those who had been withdrawn or excused, the requisite number was at last obtained and sworn. John Randolph of Roanoke, then in the prime of his powers, in spite of his request to be excused, was made the foreman.

Although so long an interval as two months had elapsed between the examination of Burr before the chief justice at Richmond in the preceding month of March and the meeting of the court on the 22d of May, it was found that little progress could be made in the trial until the arrival of General Wilkinson, the chief government witness, then in New Orleans. He had been summoned, but did not present himself until the twenty-fourth day of the term. During this interval several motions preliminary to the trial were made, and argued before the court. One was presented by Colonel Burr himself, asking the court to instruct the grand jury as to the rule of admissibility of evidence before them. Another was by Mr. Hay, the district attorney, to commit the prisoner to close custody to answer the charge of treason now preferred in the indictment prepared for the grand jury. On these motions the court delivered brief opinions overruling both. Referring to Hay’s motion to commit the prisoner to jail without bail on the charge of treason, the court held that the charge could not be entertained except on proof, in the first instance, that war had been actually levied, and that some overt act of treason had been actually committed by the prisoner; that treason was declared in the Constitution “To consist only in levying war against the United States, or in adhering to their enemies, giving them aid and comfort;” also, “that no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” It was fortunate for Colonel Burr, and for the cause of law and public justice as well, that the American people had been warned by the fate of so many martyrs and patriots, who had perished innocently on the scaffold in consequence of loose charges and vague definitions of treason made by the courts under the unwritten law of former times, and that, thus admonished, they had distinctly enacted in the Constitution that the crime should consist only in acts, and not in intentions and designs. The temper and aim of Marshall in the conduct of the cause appear in his own words:

“That this court,” said he, “dares not usurp power is most true. That this court does not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without reproach, would drain it to the bottom. But if he has no choice in the case, if there is no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country, who can hesitate which to embrace.”

He did not mean to accept the judgment of the prejudiced public as the judgment of his court.

It was also in this stage of the case, while the court was awaiting the coming of General Wilkinson, who was expected daily, that Colonel Burr, alleging that he had exhausted other means to procure certain papers which he deemed material for his defense, and which were in the possession or under control of the executive department at Washington, copies of which had been refused him, moved the court for a subpoena duces tecum, to be directed to the United States marshal, commanding him to summon Thomas Jefferson, President of the United States, to appear before the court and bring with him, according to the exigency of the precept, the papers desired and designated in the prisoner’s affidavit filed, especially the letter of General Wilkinson to the President, dated the 21st of October, 1806, and addressed directly to him. This motion was vehemently opposed by the counsel for the government, who alleged that it was wholly unnecessary, without any precedent, inconsistent with the President’s official position and duties, and that it only tended, if it was not deliberately designed, to disparage and affront him. It elicited a warm discussion before the court, which consumed several days. After full argument, the chief justice delivered the opinion sustaining the motion. Some extracts from this opinion will develop the reasoning on which his conclusion rested.

“This point being disposed of, it remains,” he said, “to inquire whether a subpoena duces tecum can be directed to the President of the United States, and whether it ought to be directed in this case?”

“This question originally consisted of two parts. It was at first doubted whether a subpoena could issue in any case to the chief magistrate of the nation; and if it could, whether that subpoena could do more than direct his personal attendance; whether it could direct him to bring with him a paper which was to constitute the gist of his testimony. While the argument was opening, the attorney for the United States avowed his opinion that a general subpoena might issue to the President, but not a subpoena duces tecum. This terminated the argument on that part of the question… .”

“In the provisions of the Constitution and of the statute which give to the accused a right to the compulsory process of the court, there is no exception whatever. The obligation therefore of those provisions is general, and it would seem that no person could claim an exemption from them but one who would not be a witness. At any rate, if an exception to the general rule exist, it must be looked for in the law of evidence. The exceptions furnished by the law of evidence (with one only reservation), so far as they are personal, are of those only whose testimony could not be received. The single reservation alluded to is the case of the king. Although he may perhaps give testimony, it is said to be incompatible with his dignity to appear under the process of the court. Of the many points of difference which exist between the first magistrate in England and the first magistrate in the United States, in respect to the personal dignity conferred on them by the constitutions of their respective nations, the court will only select two.”

“It is a principle of the English Constitution that the king can do no wrong, that no blame can be imputed to him, that he cannot be named in debate.”

“By the Constitution of the United States, the President, as well as every officer of the government, may be impeached and may be removed from office for high crimes and misdemeanors.”

“By the Constitution of Great Britain, the crown is hereditary and the monarch can never be a subject.”

“By that of the United States, the President is elected from the mass of the people; and, on the expiration of the time for which he is elected, returns to the mass of the people again.”

“How essentially this difference of circumstances must vary the policy of the laws of the two countries, in reference to the personal dignity of the chief executive, will be perceived by every person. In this respect, the first magistrate of the Union may more properly be likened to the first magistrate of a State; at any rate, under the former confederation. And it is not known ever to have been doubted but that the chief magistrate of a State might be served with a subpoena ad testificandum.”

“If in any court of the United States it has ever been decided that a subpoena cannot issue to the President, that decision is unknown to this court.”

“If upon any principle the President could be construed to stand exempt from the general provisions of the Constitution, it would be because his duties as chief magistrate demand his whole time for national objects.”

“But it is apparent that this demand is not unremitting; and if it should exist at the time when his attendance on the court is required, it would be sworn on the return of the subpoena, and would rather constitute a reason for not obeying the process of the court, than a reason against its being issued… . It cannot be denied, that to issue a subpoena to a person filling the exalted station of chief magistrate is a duty which would be dispensed with much more cheerfully than it would be performed. But if it be a duty, the court can have no choice in the case… .”

“If, then, as is admitted by the counsel for the United States, a subpoena may issue to the President, the accused is entitled to it, of course; and whatever difference may exist with respect to the power to compel the same obedience to the process as if it had been directed to a private citizen, there exists no difference with respect to the right to obtain it. The guard furnished to this high officer to protect him from being harassed by vexatious and unnecessary subpoenas is to be looked for in the conduct of the court, after those subpoenas had issued, not in any circumstances which is to precede their being issued. If in being summoned to give his personal attendance to testify the law does not discriminate between the President and a private citizen, what foundation is there for the opinion, that this difference is created by the circumstance that his testimony depends on a paper in his possession, not on facts which have come to his knowledge otherwise than by writing? The court can perceive no foundation for such an opinion. The propriety of introducing any paper into a case as testimony must depend on the character of the paper, not on the character of the person who holds it. A subpoena duces tecum, then, may issue to any person to whom an ordinary subpoena may issue, directing him to bring any paper of which the party praying has the right to avail himself as testimony, if, indeed, that be the necessary process of obtaining such paper.”

“When this subject was suddenly introduced, the court felt some doubt concerning the propriety of directing a subpoena to the chief magistrate, and some doubt also concerning the propriety of directing any paper in his possession, not public in its nature, to be exhibited in court. The impression that the questions which might arise, in consequence of such process, were more proper for discussion on the return of the process than on its issuing, was then strong on the minds of the judges; but the circumspection with which they would take any step which would in any manner relate to that high personage prevented their yielding readily to those impressions, and induced the request that those points, if not admitted, might be argued. The result of that argument is a confirmation of the impression originally entertained. The court can perceive no legal objection to issuing a subpoena duces tecum to any person whomsoever, provided the case be such as to justify the process… .”

“The court would not lend its aid to motions obviously designed to manifest disrespect to the government ; but the court has no right to refuse its aid to motions for papers, to which the accused may be entitled, and which may be material in his defense… .”

“Much has been said about the disrespect to the chief magistrate which is implied by this motion, and by such a decision of it as the law is believed to require.”

“These observations will be very truly answered by the declaration that this court feels many, perhaps peculiar motives, for manifesting as guarded a respect for the chief magistrate of the Union as is compatible with its official duties. To go beyond these would exhibit a conduct which should deserve some other appellation than the term respect.”

“It is not for the court to anticipate the event of the present prosecution. Should it terminate, as is expected, on the part of the United States, all those who are concerned in it would certainly regret that a paper, which the accused believed to be essential to his defense, which may, for aught that now appears, be essential, had been withheld from him. I will not say that this circumstance would in any degree tarnish the reputation of the government, but I will say that it would justly tarnish the reputation of the court which had given its sanction to its being withheld. Might I be permitted to utter one sentiment with respect to myself, it would be to deplore most earnestly the occasion which should compel me to look back on any part of my official conduct with so much self-reproach as I should feel, could I declare, on the information now possessed, that the accused is not entitled to the letter in question, if it should be really important to him.” [2]

We have been led to present so much of the ruling of the chief justice as will suffice to inform the reader of the ground of his conclusion, because, at the time, this ruling was bitterly arraigned, and some modern authors have warmly dissented from it. Probably many of these critics have only followed the authority of President Jefferson, who had the bad taste and bad temper to denounce the opinion as an offensive trespass on the executive department of the government.

Mr. Parton tells us that Mr. Jefferson was disgusted with the motion, disgusted with the debate, and disgusted with the decision. [3] “Shall we move,” Jefferson wrote to Mr. Hay, “to commit Luther Martin as particeps criminis with Burr? Grayball will fix upon him misprision of treason, at least; and, at any rate, his evidence will put down this unprincipled and impudent federal bull-dog, and add another proof that the most clamorous defenders of Burr are all his accomplices. It will explain why Luther Martin flew so hastily to the aid of his honorable friend, abandoning his clients and their property during a session of a principal court of Maryland, now filled, as I am told, with the clamors and ruin of his clients.” The indignant President promptly and emphatically denied the power of the court to require his attendance as a witness. “The Constitution,” he wrote, “enjoins the President’s agency in the concerns of six millions of people. Is the law paramount to this, which calls on him on behalf of a single one? Let us apply the judge’s own doctrine to the case of himself and his brethren. The sheriff of Henrico—Judge Marshall’s residence—summons him from the bench to quell a riot somewhere in his county. The federal judge is by the general law a part of the posse of the state sheriff. Would the judge abandon major duties to perform lesser ones?”

This letter shows the personal animus that inspired Mr. Jefferson’s active interest in the trial at Richmond. It shows who was the real prosecutor of the prisoner, and who stimulated the zeal and the eloquence of those who were conducting the prosecution. It seems, from a careful inspection of the court’s opinion, that Chief Justice Marshall’s plain duty, under the Constitution and the laws of the land, was to direct the subpoena duces tecum to issue, and to leave to the President on his part, as a coordinate branch of the government, the option of obeying the precept or of setting forth, in response to the process, the reasons for his failure or refusal to do so, of the sufficiency of which he must ultimately be, of necessity, the sole judge; for it was not supposed that any authority could compel his attendance. The opinion expressly declared that it would be only on the return of the process that questions might arise affecting its enforcement by any means in the power of the court; as to which, however, the court for the present declined to express any opinion as coram non judice. This essential part of the opinion the President, in his haste to condemn the court, seems to have wholly overlooked.

This ruling of the chief justice, it should be observed, seems to have been in harmony to this day with the practice which prevails in the legislative department, in calls which Congress may make, by resolution, on the President to furnish papers, documents, etc., in the executive departments, for their information. Such calls are always qualified by the proviso that the communication of the same be not, in his opinion, incompatible with the public interest. But the similarity is in spirit only; for the calls of Congress are requests, whereas the subpoena is in terms an order; and indeed a chief criticism was that the court put itself in a false position by issuing an order which it would probably be wholly incompetent to enforce.

The subpoena was sent accordingly, and in a few days the designated papers were transmitted to the court through the district attorney, and were used by the prisoner on his trial.

General Wilkinson, having at length arrived, was sent before the grand jury, who, after several days deliberation and after examination of many witnesses, appeared in court and found “a true bill” on each of the indictments. The prisoner was then ordered into close custody, and, the jail of the city proving to be an unhealthy asylum, he was soon, on the offer of the governor to the court, furnished with more suitable rooms at the state penitentiary, to which his counsel and visiting friends had free access.

At length, after fourteen days spent in efforts to secure an impartial jury, and many challenges and much and able discussion as to their eligibility, a petit jury of twelve good men was chosen. The prisoner pleaded not guilty. Early in the trial the prisoner’s counsel moved the court to instruct the jury as to the law of treason and as to the preliminary proof of the overt act, in order to limit or exclude irrelevant testimony. After examination of many witnesses and full argument of counsel the chief justice expounded the law in these terms:

“The whole treason laid in this indictment is the levying of war on Blennerhassett’s Island; the whole question to which the inquiry of the court is now directed is whether the prisoner was legally present at that fact. I say this is the whole question, because the prisoner can only be convicted on the overt act laid in the indictment. With respect to this prosecution it is as if no other overt act existed. If other overt acts can be inquired into, it is for the sole purpose of proving the particular fact charged; it is as evidence of the crime consisting of this particular fact, not as establishing the general crime by a distinct fact. If the assemblage on Blennerhassett’s Island was an assemblage in force, was a military assemblage, in a condition to make war and having a treasonable object, it was in fact a levying of war, and consequently treason. But, as the accused was not present and performing a part as charged, evidence of his acts elsewhere was irrelevant. In other words, the indictment charged him with actually levying war on Blennerhassett’s Island, and therefore could not be supported by evidence which showed that he was actually absent from the scene of action. In short, that the government could not state one case and prove a very different one, or charge the prisoner with aiding in one transaction and prove him to be actually employed in another. If the prisoner advised, procured, or commanded the treasonable act, though this might not amount to treason under the Constitution of the United States, yet the indictment should have charged him with what he actually did, and the evidence should conform to the charge… . An assemblage, to constitute an actual levying of war, should be an assemblage with such force as to justify the opinion that they met for the purpose. Why is an assemblage absolutely required ? Is it not to judge, in some measure, of the end by the proportion which the means bear to the end ? Why is it that a single armed individual entering a boat and sailing down the Ohio for the avowed purpose of attacking New Orleans could not be said to levy war? Is it not that he is apparently not in a condition to levy war? If this be so, ought not the assemblage to furnish some evidence of its intention and capacity to levy war, before it can amount to levying war?”

As to the point made by the prosecution, that the accused, though personally absent, was constructively present, and must therefore be held responsible, the court said:

“If the accused, though he had not arrived in the island, had taken a position near enough to cooperate with those on the island, to assist them in any act of hostility, or to aid them if attacked, he then might have been constructively present, and this would have been a mixed question of law and fact for the jury, with the aid of the court, to decide. … It is then the opinion of the court that this indictment can be supported only by testimony which proves the accused to have been actually or constructively present when the assemblage took place on Blennerhassett’s Island, or by the admission of the doctrine that he who procures an act may be indicted as having performed that act. It is further the opinion of the court that there is no testimony whatever which tends to prove that the accused was actually or constructively present, when that assemblage did take place. Indeed the contrary is most apparent. With respect to admitting proof of procurement to establish a charge of actual presence, the court is of opinion that if this be admissible in England on an indictment for levying war, which is far from being conceded, it is admissible only by virtue of the operation of the common law upon the statute, and therefore is not admissible in this country unless by virtue of a similar operation; a point far from being established, but on which, for the present, no opinion is given. If, however, this point be established, still the procurement must be proved in the same manner and by the same kind of testimony which would be required to prove actual presence. If those who perpetrated the fact be not traitors, he who advised the fact cannot be a traitor… . His guilt, therefore, depends on theirs, and their guilt cannot be legally established in a prosecution against him. Now an assemblage on Blennerhassett’s Island is proved by the requisite number of witnesses, and the court might submit it to the jury whether that assemblage amounted to a levying of war; but the presence of the accused at that assemblage being nowhere alleged except in the indictment, the overt act is not proved by a single witness, and of consequence all other testimony must be irrelevant.”

Under the influence of this opinion of the court on the law of the case, the jury brought in a verdict of “not guilty.” The prisoner was then arraigned upon an indictment for the misdemeanor; but as the evidence also failed to support that charge, the verdict of the jury was again “not guilty;” whereupon Burr was finally set at liberty, but was required to enter into bail, to appear at the ensuing United States court in Ohio to answer to any indictment that might be preferred against him for the offense committed in that State of conspiring to invade the Spanish territory of Mexico. He gave the requisite bail, and was again discharged. This proved, however, to be the end of the prosecution, United States Attorney Hay announcing in open court that he would recommend the executive department to desist from any further pursuit of the merely formal case that now remained.

Thus ended a state trial, the most famous which took place in the United States prior to the impeachment of President Johnson. It could have had no other conclusion in accordance with law. Whether Burr was morally guilty was a question which has been since so much discussed that it cannot be regarded as having been settled by the verdict. The duty of holding the scales of justice even at this trial was the most difficult that Marshall had to encounter during his incumbency on the bench. Jefferson succeeded in importing so much personal feeling and partisanship into the proceedings that the trial wore a very peculiar aspect. There was more in it than party hostility; there was open antagonism between the President of the United States and the chief justice; there were also covert and indirect but powerful influences at work in aid of the prosecution. No action of Marshall could have escaped contemporary criticism, and in this case he did not escape it. He was very severely attacked by many persons, who honestly thought that he had done wrong. But the fairer judgment of posterity has given him credit for perfect impartiality, and for sound, even-handed, and courageous administration of the law. The issuing of the subpoena to Jefferson alone remains a controverted point; yet as to this it must be admitted that no authority can be higher or more satisfactory than that of the chief justice himself.

  1. Safford, in his Life of Blennerhasset, pp. 71–82.  Return to text.
  2. Burr’s Trial, vol. i, pp. 182–83, 187–88.  Return to text.
  3. Parton’s Life of Burr, p. 474. Return to text.