Those who study John Marshall's career have an understandable tendency to focus on his opinions as Chief Justice of the Supreme Court, in cases such as Marbury v. Madison (1803), McCulloch v. Maryland (1819), and Gibbons v. Ogden (1824). Presiding over the highest court in the land, in the nation's capital, Marshall stamped the Constitution with an indelible interpretation. Not merely the greatest judge of the age, as a constitutional interpreter he towers over every justice ever since.
We may forget that, in his day, a Supreme Court Justice was also a trial judge, "riding circuit" for much of the year, sitting alongside federal district judges to try cases in the circuit courts away from the capital. For the most part, only the closest students of the early Supreme Court have paid much attention to the Justices' trial-court activities. And admittedly, it is a rare case at the trial level that gives rise to opinions of historic interest. But as R. Kent Newmyer, a professor at the University of Connecticut Law School and one of the best historians of the early republic, shows in his new book, United States v. Burr is that rare case.
Of all the cases on which Marshall sat in his 34 years on the bench, the 1807 treason trial of Aaron Burr in Richmond, Virginia, over which he presided with district judge Cyrus Griffin, consumed more of his time and energy than any other, and prompted more legal opinion writing than any other (some 20 items in the Marshall Papers), including two of his longest, most significant constitutional opinions. In the early 19th century, the Supreme Court convened on the first Monday in February and rarely went far into March before it had disposed of all the cases on its annual docket. (Those were the days!) But in the Richmond circuit court, Marshall was consumed with the Burr case off and on from the end of March to mid-October 1807, with the main treason trial occupying the whole month of August.
The trial was the great event of Richmond society that summer, and was held in the House of Delegates chamber to accommodate the crowds. The former vice president of the United States—the duelist who had killed Alexander Hamilton just three years earlier—was prosecuted at the behest of the president with whom he had lately served. But...for what?
It is still impossible to say with certainty exactly what Burr was up to in the southwestern frontier country near the mouth of the Mississippi. Was the "Burr Conspiracy" a plot to saw off a chunk of the western United States as a new republic with Burr in charge, perhaps under the protection of a foreign power? Was it all about driving Spain out of North America and seizing Mexico for the United States, with Burr dreaming of heroism and preparing an army locally for such an eventuality? Was he simply trying to stir things up in the Southwest, in hopes of an extortionate payoff to himself for not employing the forces he was intent on gathering?
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The truth about his scheme, which fizzled out hundreds of miles upstream when a few ne'er-do-wells gathered on an island in the Ohio River—where Burr was not even present—may never be known. Newmyer focuses instead on the roles played in the case by President Thomas Jefferson and Chief Justice Marshall. Jefferson seemed obsessed with the destruction of his former vice president, even going so far as to send a special message to Congress in January 1807 stating that he had learned that "designs were in agitation in the Western country unlawful and unfriendly to the peace of the Union, and that the prime mover in these was Aaron Burr," whom he also identified as "the principal actor, whose guilt is placed beyond question."
By publishing this conclusion in an official state paper, Newmyer writes, "Jefferson pronounced Burr guilty of treason for attempting to separate the western states from the Union." Although he nowhere uses the word "treason" in the message, it's clear what impression Jefferson intended to make on the public mind, and U.S. attorney George Hay was ordered by the president to go for broke on exactly that charge.
Did the president, as Newmyer argues, "lay waste to the fundamental principles of due process" with his public declaration of Burr's guilt before trial? Or can the nation's chief magistrate, invested with all the "energy" required to uphold the laws and defend the Constitution, be legitimately granted some leeway? Wasn't he, like the prosecutors working on his behalf, merely declaring a defendant's guilt, just as they would preparatory to proving it at trial? Unfortunately, Newmyer superimposes an enlarged, modern image of the presidency's force and influence on the more modest office that early presidents were still feeling their way toward exercising.
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Still, Jefferson's zeal for ensuring Burr's utter ruin was unseemly at best, and entirely unhelpful to the cause of justice. Luckily for Burr, his chief trial judge was a man neither enamored of Jefferson nor cowed by him—though as a friend and admirer of Hamilton, Marshall had no reason to love the defendant, either.
Burr, himself a lawyer, provided his own defense along with six co-counsel, including legal giants Edmund Randolph and Luther Martin. The prosecution had three lawyers on its side, including William Wirt, who was later to serve as attorney general for a dozen years under two presidents. Marshall (and the remarkably silent Judge Griffin) listened to hours of arguments on the meaning of the Article III clause on treason, complete with learned disquisitions on the history of English treason law since Edward III. There was first-class lawyering on both sides.
As a preliminary matter, Marshall had to decide whether his court could require the president to divulge evidence demanded by the defense. Marshall rightly answered in the affirmative, setting an important precedent that would haunt Richard Nixon and Bill Clinton in the distant future. Jefferson disgorged the documentary evidence to which the defense had a right under the 6th Amendment, though he never conceded his legal obligation.
But the most sustained argument, giving rise to Marshall's own greatest performance in the case, concerned the principles of the treason clause, which required showing that the defendant had engaged in "levying War" against the United States, and that he had committed an "overt act" to which two witnesses could testify. The prosecution's whole case rested on three items: (1) the occurrence of some mysterious events on Blennerhassett's Island in the Ohio River (on the edge of what is now West Virginia, then in Richmond's jurisdiction), at a time when Burr was not present; (2) the testimony of a not very credible witness, the military governor of the Louisiana Territory, James Wilkinson, who had himself been up to something with Burr before turning on him; and (3) the evidence of a letter written in cipher, said to be in Burr's own hand (though it probably wasn't), which was cryptic even when deciphered and implicated Wilkinson enough to be explosive for the prosecution if examined too searchingly.
What Marshall ruled, in response to Burr's motion to suppress much of the evidence in the case, was that only the events on Blennerhassett's Island really mattered, since only there could any "overt act" be detected that might come within shouting distance of even preparing to levy war. Marshall had interpreted the treason provision more briefly a few months earlier, in a Supreme Court case involving two of Burr's confederates, and the prosecution saw in his earlier opinion an opening to argue for a limited form of "constructive treason," so that a conviction could be obtained for the conspiracy preparatory to any acts of war.
The Chief Justice effectively closed the door on it in the Burr trial. It might be possible to convict Burr of planning and procuring the means of making war on the country, if the government could show an overt act known to two witnesses, and if war had actually been levied. But with or without Burr's presence, nothing much had happened on that Ohio River island, and the might-have-beens on which the prosecution relied were simply too speculative. Once Marshall made his evidentiary ruling, the jury had little choice but to acquit.
Thus did John Marshall preserve and elaborate a principle that the framers regarded as vital to the American rule of law—that the criminal offense of treason must be narrowly construed, so as not to be employed by the executive as a weapon against political enemies. Aaron Burr was hardly a sympathetic victim, but that made it all the more important that the president's aim be defeated.
Newmyer is gifted at telling the story and sketching the personalities, and at explaining the intricacies in this factually and legally complex trial. A sense of the novelty of it all comes through repeatedly; these American judges and lawyers were finding their way toward a concrete understanding of constitutional principles, and pioneering an American legal culture in which an energetic prosecution met an equally aggressive defense, unafraid to call the country's highest magistrate to account. And over the whole tale towers Marshall, whose own singular, pioneering career is almost sufficient alone to instruct us in the meaning of American jurisprudence.