Constitution, Law, and Politics in United States v. Aaron Burr
Aaron Burr (who was acquitted of treason) was in fact innocent of the charges directed against him.
One of the most important trials during the age of Chief Justice John Marshall was the federal government's prosecution of former United States Vice-President Aaron Burr, Jr. (1756-1836) on charges of treason and high misdemeanor. United States v. Aaron Burr was of national significance because upon it hinged not only the fate of men's lives and the constitutional definition of treason, but also the judicial career of John Marshall and the independence of the national judiciary from partisan politics.
Underlying events that occurred during the key presidential election of 1800 triggered Thomas Jefferson's antipathy toward Aaron Burr. As organizer and leader of the nation's first political machine in New York, Burr was the one man most responsible for the victory of the Democratic-Republican party (the forerunner of the modern Democratic Party) over the Federalists and the election of Democrat Thomas Jefferson in 1800. Jefferson owed his presidency to Burr's efforts--even though Burr's friends had placed his own name in nomination.
Burr's integrity, courage, and loyalty were manifested when Burr tied Jefferson for the number of presidential votes, and the decision went to the House of Representatives. Some Federalists were determined to elect Burr over Jefferson, but Burr declined, saying that the people wanted Jefferson. Burr's refusal of the presidential office, combined with Federalist Alexander Hamilton's political vendetta against Burr, caused the Federalists to switch their votes to Jefferson, who was elected president, and Burr, vice-president. That Burr knew about Jefferson's "sell-out" to the Federalists was a bitter thorn in Jefferson's side.
There were other reasons, as well, why Jefferson later wanted to ruin Burr politically: After securing Jefferson's election, Burr was a political threat to the aspirations of what Burr called the "Virginia junto" who were seeking to establish a presidential dynasty. Thus, politicians determined that Burr's political career should not continue. Alexander Hamilton (for reasons of his own political ambition) was the first to oppose Burr, and after his death, Hamilton's political opponent, Thomas Jefferson, took up the torch on behalf of the "Virginia junto".
Unfortunately, Federalist John Marshall (who didn't know Burr) accepted Hamilton's view of him. The valued word of a fellow Federalist may have formed the opinion of Marshall, who, as future Chief Justice of the United States Supreme Court, was to preside at Burr's trial seven years later. Significantly, during the election of 1800, Hamilton asked Marshall to side with Jefferson, but Marshall refused to do so. Later, Chief Justice Marshall was present at the impeachment trial of Justice Samuel Chase, over which Vice President Burr presided. Burr's dignified demeanor and impartial conduct at the Chase impeachment trial--a performance worthy of Marshall's emulation--may have been Marshall's most vivid memory of Burr, before the great Chief Justice presided over Burr's own trial.
Jefferson v. the Federal Judiciary
The underlying event that ultimately resulted in Aaron Burr's defense of himself, and Chase and Marshall's defense of the Supreme Court of the United States, was the election of 1800, which swept Thomas Jefferson into power as President of the United States.
During Jefferson's presidency, there were opportunities for conflicts between the executive and the judiciary that were fostered by the political environment. The Democrats were poised for attack when John Marshall took the bench as United States Supreme Court Justice in 1801. To curb the power of the court, Thomas Jefferson had a three-pronged plan: (1) repeal the Judiciary Act of 1801 to remove John Adams' so-called "midnight judges"; (2) impeach federal judges until they were terrorized into submission; and (3) the ultimate goal: the removal of John Marshall.
Democrat leaders called for the replacement of the federal judiciary with a judiciary that could be molded to fit Jefferson's political will. It was the ultimate mixture of law and politics: the subjugation of the judicial branch to a partisan president. And Federalist Supreme Court Justices Samuel Chase (1741-1811) and John Marshall (1755-1835) knew they had to pull the Supreme Court out of that pit, or else the public would always view the court as just another appendage of the dominant political party. They knew that they had to build an image of a strong, independent, impartial federal judiciary that the public could trust. (Indeed, conservative Justice Samuel Chase legitimized the idea of judicial review--and he did it, at least in part, on a natural law basis. And this was before John Marshall wrote Marbury v. Madison (1803), which expounded the doctrine of judicial review of Congressional acts. Apparently, Marshall gleaned the concept of judicial review directly from Chase himself.)
(In 1798, Chase indicated in Calder v. Bull, 3 Dall. (3 U.S.) 386, that the United States' free republican principles overrode legislatively-enacted positive law that produced injustice; such a legislative act could not be called a law because it was contrary to the fundamental republican principles inherent in the American government formed by social compact--namely, the principles of natural justice. This was saying, in essence, that the United States Constitution embodied, and was legitimized by, natural law principles. (For more about natural law in the Constitution, read Acknowledging the Almighty.) Thus, obligations created by positive law (enacted by the people's representatives in the legislature) were only as valid as the nature of that law's authority, which in turn depended upon whether the exercise of that authority was in accordance with right reason (according to the principles of natural law).
(This is in sharp contrast to the legal positivist view of legal authority, which asserts that the authority of positive law is derived from the command of the official declaring something to be "the law"--irregardless of the morality of the "law" he is declaring. Under the legal positivist system, hypothetically, even an immoral judicial opinion is declared law simply because it is a judge who declares it. This is an exercise of "will" (making the law to suit personal or political preferences) rather than "judgment" (discovering the law from the natural law principles inherent in the Constitution). But law is supposed to be above politics. That's the true independence of the judiciary that Chase and Marshall sought to establish and uphold. It's not "independence" to stray away from the Constitution; it's independence from the slavery of political influences.)
The need for an independent judiciary was strong in the early years of the American Republic. The public already held the court in low esteem--partly due to Jefferson's attacks, and partly because of the federal judges' own actions. Some judges exhibited bad courtroom manners, harangued juries, and openly engaged in partisan politics. The public response to the courts was largely negative. All of that, the Supreme Court Justices, including Marshall and the great legal theorist, Samuel Chase, had to overcome.
But first, they had to fight for the court's survival. Jefferson's first plan was a success. Both houses of a Democratic Congress voted in early 1802 to repeal the Judiciary Act of 1801. The repeal returned the court to its state of existence under the Judiciary Act of 1789. Supreme Court justices once again were required to ride circuit. There was only one thorn in Jefferson's side: The repeal had almost not succeeded due to Aaron Burr, the presiding officer of the Senate, who favored an independent judiciary. To accommodate both sides, Burr voted "yes" to move the repeal bill into a select committee to counteract the effects of Democrat bias. Though such a move demonstrated Burr's impartiality, Jefferson never forgave Burr for jeopardizing the attack on the federal judiciary. It was a grudge that ultimately led to Burr's own trial.
While the Judiciary Act was being debated, John Marshall was preparing his own emergency plan to assert judicial supremacy and save the Supreme Court. Marshall's answer was Marbury v. Madison, 5 U.S. 137 (1803).
Thomas Jefferson, enraged by the Marbury decision, debated whether or not to impeach the most vulnerable members of the judiciary. As soon as the repeal bill passed, Jefferson partisans in the Pennsylvania Senate impeached and convicted a judge in their state, Alexander Addison. The next target was the weakest district judge, John Pickering. Congressional partisanship ensured that Pickering was convicted. Abstaining from the vote was Aaron Burr, who disagreed with the impeachment.
Encouraged by the success of these two impeachments, Jefferson and his adherents then took aim at a more prominent member of the federal bench, who had criticized Jefferson's attack on the federal judiciary. Furthermore, this judge asserted the union between law and morality. (At that time, morality meant Biblical morality: that the Bible laid the foundation for positive law and gave that law its legitimacy.)
The judge's name was Samuel Chase.
For partisan political reasons, the Democrats impeached Justice Samuel Chase on a charge of high crimes and misdemeanors. Burr returned to the Senate in time to preside over the Chase impeachment trial. As in the later case of Burr, Chase was prejudged in the newspapers. Public emotions ran high, for this trial occurred simultaneously with the debate over the infamous Yazoo lands, with Democrat John Randolph of Roanoke (later the jury foreman in the Burr trial) leading the attack against President Jefferson. The Chase impeachment alarmed John Marshall, who probably expected to be the next judge charged. In a letter written during the Chase trial, Marshall was frightened enough to back down from the idea of judicial supremacy that he articulated in Marbury v. Madison; he suggested that a case could be appealed from the Supreme Court to Congress.
The Chase trial arrangements were dramatic, the benches draped with red cloth. Presiding over this stage-like court was Vice President Aaron Burr. Jefferson wanted to convict Chase badly, and apparently tried to tempt Burr with favors, including the appointment of members of Burr's family to government positions. But Burr remained totally impartial and was a model presiding officer. Thus Burr separated law from politics and upheld the rule of law.
Chase was acquitted. Jefferson was enraged. Possibly, Jefferson might have wanted to ruin Burr politically because not only was Burr his onetime presidential rival, but also because (for one thing) Burr wouldn't help him destroy the federal judiciary .
Aaron Burr, American Founding Father
Aaron Burr consistently denied that he attempted any sort of separation of the western United States from the rest of the nation.
Years after his much-discussed colonization effort of 1805-1806, Burr had a conversation with a visitor during the 1830's. The topic was Texan independence. Upon reading about Texas' fight for statehood in the newspapers, Burr became very excited and essentially told the visitor that Texan independence was what he had tried to achieve thirty years before. Burr declared himself thirty years ahead of his time, and said that he was called a traitor back then for doing the very same thing that Texas patriots were doing now.
Historical evidence indicates that Burr's original plan was to liberate Mexico--along the lines of a South American liberation plan previously proposed by Alexander Hamilton. Hamilton's plan for a Pan-American alliance, with free American governments holding economic and cultural interests and free trade in common--as opposed to the French revolutionary (secular) doctrines emanating from Old Europe--sounds similar to a possible, future Pan-American alliance such as that mentioned in Camerica: The Trilateral Center of the New World Order.
From this it may be theorized that Burr--given his enthusiasm for exporting revolutionary principles--sought to spread America's revolution throughout at least Mexico, and possibly Central and South America (the term for it was "revolutionizing"), with the aim of stirring their people into forming independent republics that possibly might form some sort of Pan-American alliance with the United States one day. Given the totality of Burr's statements and beliefs, and given a fair assessment of Burr's actions (free from newspaper hype and political spin), the theory that he was attempting to carry out, at least in part, Alexander Hamilton's "coalition of the American hemisphere idea", is plausible. Speculatively, Burr's efforts might have resulted, sometime in the future, in a Latin American-United States alliance. (For an idea of an alliance in the 21st century, see Camerica). Burr apparently believed, rather na´vely, that Thomas Jefferson would follow along and aid him in his efforts. In other words, Burr was possibly trying to add Mexico to the United States.
(Burr wished to help Mexico achieve its independence from its Spanish overlords only if war broke out between the United States and Spain; he never wished to instigate the war himself. If no war occurred, he merely wished to colonize his own southern property: thousands of acres of Washita (Ouachita) land which he had recently purchased. This colonization effort was what he finally decided upon, and which he was implementing in 1806.)
The Burr Expedition to the West
After fighting a duel with Alexander Hamilton on July 11, 1804, Aaron Burr retired from public life with a moving farewell speech to the United States Senate which left many weeping. Since a murder charge still hung over Burr in the East for the death of Hamilton, Burr decided to begin a new life as a colonist in the West.
In anticipation of impending war with Spain, Burr devised a plan to lead an expedition against Mexico, should war come. That was his first goal. (There is reason to believe that Burr may have tried to "carry on" the deceased Hamilton's earlier scheme to liberate South America with Francisco de Miranda of Venezuela, which apparently had been planned without the knowledge of President John Adams--or with the government disavowing knowledge (plausible deniability). One can consider it a twist of politics that Hamilton died a hero, whereas Burr was tried for treason (and acquitted), though they dreamed essentially the same plan.) If no war occurred, Burr planned to continue his second goal: to colonize his own Washita (Ouachita) lands in the Louisiana Territory.
(An alternate historical theory for explaining why Jefferson's Democrats were so opposed to Burr's colonization efforts is that Burr, who disliked slavery, could have endangered the Democrats' Southern power over slave states and territories. Any land that Burr colonized probably would have been anti-slavery. Burr's colony conceivably could have undermined the institution of slavery in the South, as soon as the early 1800's.)
Burr's woes began when rumors (read: spin) appeared in the newspapers that Burr was trying to start a rebellion in the western United States. The first important article appeared in the United States Gazette (Philadelphia) on August 2, 1805, headed as "Queries". Jefferson adherents alerted Jefferson about the rumors, according to Jefferson's cabinet memorandum of October 22, 1806. Jefferson privately ordered various state government officials to watch Burr's activities. The president later rescinded the orders when it appeared that Burr was doing nothing illegal.
Then the ghost of Alexander Hamilton rose in Kentucky in the form of ardent Hamilton admirer Joseph Hamilton Daviess, the United States Attorney for the District of Kentucky and brother-in-law to John Marshall. Daviess wrote to Jefferson that Burr was starting a conspiracy, and then printed that accusation in the (Frankfort, Kentucky) Western World, a newspaper backed by Humphrey Marshall. Daviess, on his own initiative, submitted an affidavit in the District Court at Frankfort, Kentucky on November 5, 1806, charging Burr with high misdemeanor. Burr said at the time that the charge was vague, and that it seemed to allege a plan to attack Spanish America. Burr insisted on his case being reviewed before a grand jury to prove his innocence. After a grand jury was empanelled, Daviess couldn't produce his witness, and the grand jury was discharged. On November 27, 1806, Jefferson issued a proclamation alleging a conspiracy within the United States to invade Spanish-held territory, and alerting state civil and military authorities. Daviess tried to indict Burr again with the grand jury being empanelled on December 2, 1806; insufficient evidence was found, and Burr was exonerated, to the delight of the public. President Jefferson was enraged.
The Invasion of Blennerhassett Island
While Burr was defending himself at Frankfort, Kentucky in early December 1806, the government was busy striking at his supporters on the Ohio as well as stirring up the governor of Tennessee. The strange, dilatory pursuit of Burr by a government-hired spy, carried out under secret orders from Thomas Jefferson, increasingly assumed the appearance more of a presidential rumor mill than a legal manhunt.
(Such "tall tales" as the spy had compiled were public rumors that he had heard during the course of his travels and were not the result of his first-hand investigations, with the exception of a statement of Burr's plans culled from the lips of Burr's friend Harman Blennerhassett, whom the spy had previously visited in the guise of a friendly supporter. What Blennerhassett told the spy was not the treason for which the spy was fishing: The main plan, said Blennerhassett, was to settle peacefully on the Washita (Ouachita) lands in northern Louisiana. A fight with Mexico if the United States and Spain should enter into war was only incidental to colonization.)
Burr's problems in the Ohio Valley began when the spy visited a local "citizens'" group in Wood County (in what is now West Virginia) to tell them and Ohio Governor Edward Tiffin that the small island in the Ohio River owned by Burr's fellow adventurer, Harman Blennerhassett, would soon be the scene of a massive gathering of troops raised by Andrew Jackson and a group of Kentuckians. Significantly, the sight of a presidential order was enough to make Governor Tiffin refer the matter to the Ohio legislature (which entertained some doubt as to the truth of the public rumors, as was evidenced by its letter to President Jefferson).
Unfortunately, the "citizens'" group basically threw a party on Blennerhassett's estate, which only served to increase the fear of local residents, who wondered what all the commotion was about. It was a tragi-comical example of vigilante "justice". The joking manner in which the citizens viewed their failure to discover any army assemblage or military stores was evidenced by their sham "trial" and release of fourteen of Burr's young colonists who stumbled onto the scene of their party. Burr's friend Blennerhassett and the thirty to forty young men gathering their boats and supplies on the island had left during the previous night, in full view of the public and the militia. It was that incident, however, that the prosecution would later use to try to prove an overt act of treason against Burr's followers during Burr's treason trial, using the testimony of a gardener to swear that the militia's general, Edward W. Tupper, had tried to arrest Blennerhassett and his men and that they had resisted. The government did not call Tupper himself as a witness in the trial, and with good reason. Tupper gave testimony in a deposition that directly contradicted the testimony of the gardener. Not only had Burr told Tupper about his western expedition to Louisiana, but Tupper had also offered to fight if war with Spain ever came. A greater blow to the prosecution was that Burr's letter contained statements claiming government authorization of his colonization plan, including the implied consent of Thomas Jefferson.
The Newspaper War
The due process violations to which Aaron Burr was subjected did not end with the indictment proceeding in Kentucky--instead, they had just begun. A key factor that would later interfere with Burr's ability to obtain an impartial jury was the newspaper war that followed in the wake of Jefferson's proclamation. The blitz that began in Kentucky's Western World reached a new frenzy after the Blennerhassett Island invasion--primarily through the efforts of the leading Democratic newspapers in Richmond and Philadelphia. One example of the misinformation the public was being fed was the report that Burr was constructing warships and other military items in West Virginia and Kentucky. Burr wrote to Edward W. Tupper, saying that the newspaper reports were fabricated lies, constructed to deceive the public.
The "news" was anything but objective. Declarations of Burr's guilt splattered the pages before Burr was even indicted of a single crime. The wildest rumors were printed as facts. Newspaper stories (as in fiction) included spin like this: Burr planned to take the much-debated Yazoo lands (the newspapers hated to give this rumor up even after it was clearly apparent that Burr had purchased Washita (Ouachita) lands); Burr was mysterious, he moved in secret (in General Andrew Jackson's house, at Southern dinner parties, and in full view of all the U.S. armed forces); Burr had drawn enormous sums from Kentucky banks (allegedly, the rumor went, now to buy both the Yazoo and Washita (Ouachita) lands).
After the Blennerhasset incident, newsprint became even more vivid, openly proclaiming Burr to be a traitor and encouraging all the people of the United States to rise up against him. It was exaggerated rumors and spin like those stories that gave birth to the editorial sensationalism--the stories that Burr wanted to be an emperor. Doubtless, the propaganda sold newspapers, despite their lack of documented facts--and in the process, demonized Aaron Burr and tainted his name in the minds of historians for generations to come. Fortunately, this trend in part has begun to be reversed, as some perceptive historians, viewing all of the evidence, years removed from the partisan politics of the era, have begun to revise Burr's reputation after viewing it in historical and political perspective.
The nineteenth-century journalistic strategy produced its effect of igniting a corresponding uproar in state government, with the Kentucky legislature passing a new "Act to Prevent Unlawful and Warlike Enterprises". Burr, following his second exoneration in Frankfort, left Kentucky with U.S. Senator John Adair and stayed a considerable time with his friend, Tennessee Governor Andrew Jackson, who had supplied some boats for the Burr expedition and who maintained faith in Burr's innocence during Burr's trial. Jackson obeyed Jefferson's orders to investigate Burr's equipage, but found that Burr possessed only ten boats with no signs of any military stores or preparations--a note which Jefferson reported to Congress.
(Burr thought that the ridiculousness of the whole situation was evidenced by the fact that his boats--as boats carrying families of colonists naturally would--included women and children on board. His expedition included about a hundred and thirty men--not enough to conquer Mexico alone, much less the western United States. Thus, the whole persecution of Burr was patently ridiculous.)
It wasn't until January 10, 1807, after Burr had joined Blennerhassett's boats on the Cumberland River and journeyed to Bayou Pierre in the Louisiana Territory, that Burr became aware of Jefferson's proclamation of November 27 and U. S. General James Wilkinson's version of a so-called "cipher letter", both of which had been printed in the Natchez Mississippi Messenger. (Burr thought Wilkinson was a compatriot, but unknown to him, Wilkinson was actually a double agent in the pay of both the United States and Spain. Obviously it was in Wilkinson's own interest to betray Burr, inflame Jefferson against Burr through the use of altered evidence, and thereby please his own Spanish superiors by preventing Burr from starting a revolution in Spanish territory.)
Burr wrote to the territory's secretary and acting governor, Cowles Mead, to voluntarily submit himself to the civil authorities in Mississippi and to invite the public and the militia to view his boats. Two visits by regiments of militia found nothing remotely resembling a mighty army, but rather found boats carrying colonists (including women and children). (Why should Mrs. Blennerhassett accompany a military expedition to Mexico? It is far more reasonable to deduce that she, as well as the women and children, had colonization as their goal.) Still, Mead asked Burr for an interview, which resulted in a written agreement by which Burr agreed to voluntarily surrender himself to the civil authorities if Mead would extend to him and his fellow colonists the protection of the law.
Jefferson's Special Message to Congress
When Jefferson thought the government had Burr helpless in its possession, the president struck his biggest blow. In his January 22, 1807 message to Congress, Jefferson issued a flat assertion of Burr's guilt. It was an unusual speech, full of contradictions. Jefferson vaguely told Congress he had received a large amount of correspondence concerning private persons planning a military enterprise against a foreign power (presumably Spain). In reality, however, the materials he had received were from General Wilkinson. Those documents included the general's altered version of a "cipher letter", supposedly written by Burr (but which has been hypothesized to have been actually written by Burr's co-adventurer, Senator Jonathan Dayton). Wilkinson's letters were worded such that the President felt he had to make the news public. Unknown to Jefferson, Wilkinson had erased and replaced certain key words in the "cipher letter" (including the erasure of all words tending to incriminate Wilkinson in the expedition). It has been hypothesized that, while Burr did write a letter which was copied by his associate Samuel Swartwout, Wilkinson substituted in its place the letter written by Jonathan Dayton, which Wilkinson "decoded" and altered to the point of forgery. The letter was unsigned. (Burr denied that he had written this "cipher letter", and said that it was a fake.)
Almost immediately, suspicions were aroused about the "cipher letter": Senator William Plumer wrote that the "cipher letter" sounded more like Wilkinson than Burr. Earlier, Jefferson's Democrat critic, John Randolph, had introduced a congressional resolution calling upon the President to submit to Congress any documents in his possession relating to the Burr affair. Randolph was unwilling to base congressional opinions on the so-called "evidence" (i.e., rumors and propaganda) offered up by the newspaper stories circulating throughout the country. He wanted Congress to have the knowledge which Jefferson alone possessed. It was this resolution that forced Jefferson to feel the necessity of submitting to Congress his special message of January 22 and the documents received from Wilkinson.
Though historical evidence indicates that Jefferson knew Wilkinson was a double agent, secretly in the pay of Spain, yet he praised the general as the ideal American hero. The evidence indicates that Jefferson fully knew of Wilkinson's involvement in the Burr plan. (To Burr, Wilkinson posed as a fellow adventurer. Burr's friend Erich Bollman claimed that Wilkinson was in the pay of Spain, but the charge was not proven until years later with the opening of the Spanish archival records.) Earlier, Jefferson had sent a secret message to Congress about his planned secret deal with the Spaniards to buy the Floridas. War with Spain would ruin the deal, which was probably why Wilkinson made peace with them on the Sabine River. Indeed, the tone of Jefferson's address implied that Burr's plan was terminated so that the United States and Spain would not go to war. If that was so, then really, Burr's benign colonization activities were stopped in order to protect an international deal arranged by the United States and Spain. The idea of a separation of the western states from the Union was apparently Wilkinson's idea, which had been undeservedly attributed to Burr, and Jefferson knew it. As Burr's associate, Harman Blennerhassett, indicated in his journal, Jefferson seemed to deliberately ignore Wilkinson's spying for the Spanish.
Though President Jefferson disclaimed any authorization for Burr's actions, Burr's supposed plan to revolutionize the Floridas and Mexico sounded similar to Jefferson's plan to acquire Louisiana and Florida. Harman Blennerhassett believed that Federalist Joseph Hamilton Daviess initially prosecuted Burr for political reasons: because Daviess thought Democrat Jefferson was aiding Burr, and Daviess wanted to get back at Jefferson. Also, Daviess felt slighted by Burr. Burr, at least, told Andrew Jackson that his expedition enjoyed the support of Secretary of War Henry Dearborn. Unknown to Burr, Wilkinson was also writing to Dearborn about a proposal in which Wilkinson would lead an expedition against Mexico alone. Those correspondences led Burr to subpoena the Secretary of War's papers later at trial. Burr told Henry Clay that he had already explained his idea to members of Jefferson's administration, who acquiesced in it. Hypothetically, one can theorize that Burr was framed: that details of an old plan to separate the western United States from the rest of the states, advanced by General Wilkinson and his Spanish superiors, was tacked on by General Wilkinson to Burr's own plan of invading Mexico in the event of war, with the whole package presented to the public as a combined scheme to invade Mexico and sever the western states, with Aaron Burr falsely presented as the plan's sole author. Thus, international politics, and not gullibility, is the most plausible explanation for Jefferson's uncritical acceptance of Wilkinson's words.
Cloaked with the authority of his high office, President Jefferson then uttered the phrase that would brand Burr a traitor, ruin any hopes of Burr ever rising again as a political rival, and seriously jeopardize Burr's right to a fair trial: Burr's guilt, Jefferson asserted, was beyond question. No better letter could have been written for the conviction of Aaron Burr than Jefferson's address. It was patently obvious from the tone of the letter that prejudgment was Jefferson's intent. Those who had acted in accordance with the president's proclamation, such as Governor Tiffin, were praised for their "patriotic zeal", while Burr and his associates were called "fugitives" (which until that point they had not been) and even "criminals"--a term connoting judicially-determined guilt before they were even tried. In all, Jefferson delivered a contradictory speech: After saying that the intimations against Burr were "inconclusive" and Burr's objects "uncertain", Jefferson reiterated Wilkinson's accusations as emphatic facts: Burr would separate the nation, swoop down on New Orleans and "plunder" its bank funds, and use colonization plans as a "pretext" or cover. Then Jefferson ended the speech by acknowledging that Burr's actions were no serious threat--despite the fact Jefferson had stirred up the army and navy of the entire West against him.
Despite his declaration of Burr's guilt, Jefferson admitted that he really had "little" in the way of "legal evidence". That is, Jefferson's prejudgment was based solely on rumors and propaganda--largely from General Wilkinson and certain newspapers. The message itself contributed to the newspaper spin when it splashed before the public eyes in the January 23 National Intelligencer. I am telling you this, Jefferson implied, to erase people's bias in favor of Aaron Burr. Apparently, the general public believed in Burr's innocence or at least did not believe in his guilt. The prejudgment provoked John Adams to write to Benjamin Rush, saying: "At present I suspect that this Lying Spirit has been at Work concerning Burr and that Mr. Jefferson has been too hasty in his Message in which he has denounced him 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."
Imbued with the ring of presidential authority, Jefferson's message had a profound effect on the American public, which from that time forth took Aaron Burr's guilt for granted. The Western World proclaimed--in all capital letters--that Aaron Burr was a "TRAITOR". The newspaper asserted that they thought this because of Jefferson's proclamation and his message to Congress. Burr had not been presumed innocent as the law required, and through the mechanism of politics, which caused nationwide prejudgment in his case, he in effect had been deprived of the right to be tried before an impartial jury.
Uproar in New Orleans
Public prejudice and congressional "enlightenment" were not the only purposes for Jefferson delivering his special message, however. The message also officially vindicated the dictatorial powers given to General Wilkinson over the port of New Orleans. While Burr's mind was occupied with legal battles in Kentucky, Wilkinson exercised his own powers zealously.
John Randolph shrewdly proclaimed that Wilkinson, in order to exonerate himself, had outdone Herod, and indeed, the general's primary motivation for governing New Orleans appeared less like a desire for justice than an overpowering impulse to remove or muzzle anyone who could link him to Burr's expedition. As an opening salvo, Wilkinson ordered that Burr associates Dr. Erich Bollman, Samuel Swartwout, and Peter Vroom Ogden, be seized and imprisoned without a legal warrant. The due process violations were numerous. Over and over again, Burr decried the legal violations, and again and again Burr told of the falsehoods that were being directed against him and his associates.
The success of General Wilkinson's plan depended on his illegal circumvention of the court system in violation of due process. Arrest under the cover of martial law was his preferred method of operation. The charge against Bollman and Swartwout was treason. The evidence? The general's altered "cipher letter" and his assertion of additional "evidence" which he felt the court did not need to see. The "evidence" was essentially zero against Peter Vroom Ogden, who was released by the civil authorities, only to be re-arrested by the general and ordered to be released by the court. However, the general resisted all court-ordered writs of habeas corpus for the prisoner. These nullifications of the habeas corpus privilege were gross violations of procedural due process, provoking the judge who ordered the writs to resign from the bench, disgusted with the court's impotence and very pessimistic about the future of the court system under the general's domination. The general arrested the judge and charged him with treason, too. Obtaining writs of habeas corpus for the release of the general's prisoners was the "offense" that also placed James Alexander under the general's arrest. Alexander was deported without money or clothing. The general also arrested the editor of the Orleans Gazette, thus chilling criticism of his regime. Another violation of the Fourth Amendment search and seizure doctrine was the general's theft of Burr's correspondence from the United States post office.
When the residents of New Orleans discovered that the general's alarms were but a hoax, they were furious. The barriers between law and politics had totally broken down in New Orleans. Politics, in the guise of General Wilkinson, controlled and intimidated the courts, whose independence had vanished overnight. In such a situation, the general was free to arrest whomever he chose on any charge, and due process violations contrary to the United States Constitution were the norm rather than the exception.
On January 12, 1807--ten days before Jefferson delivered his special message--Wilkinson had unsuccessfully tried to persuade the legislature of the Territory of Orleans to suspend the privilege of writs of habeas corpus, but the legislature considered such an action a violation of the United States Constitution. The very next day after Jefferson's message, on January 23, 1807, Jefferson's Senate leader moved Congress to suspend the privilege of the writ of habeas corpus. The reason given was to prevent the escape of Swartwout and Bollman before their trial before Chief Justice John Marshall, but Senator Bayard warned that it was a due process violation. Despite objections and doubts by Bayard, Plumer, and others, including the president's own son-in-law, the Senate passed the bill, which the House later defeated. The vote was followed by a February 7 House resolution to safeguard writs of habeas corpus, proposed by Representative Jacob Broom with the support of Democrat John Randolph of Roanoke. To not safeguard the writ was unconstitutional, he argued--a violation of the Fourth, Fifth, and Sixth Amendments. But the resolution was postponed.
The writ issue was just one more item added to the rapidly-growing list of constitutional violations. The pattern of searches and seizures had already violated the Constitution's Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." General Wilkinson had conveniently dispensed with the "probable cause" requirement or any judicial procedure whatsoever. Likewise, the Fifth Amendment's provision, "nor shall any person [...] be deprived of life, liberty, or property, without due process of law", was disregarded. In light of Burr's innocuous activities, the Congressional bill against habeas writs was not justified under the Constitution's Article I, section 9: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
By being shipped from New Orleans to Washington, D.C., Swartwout and Bollman were not being tried in the state and district where any overt act was alleged to have been committed, as required by the Constitution's Sixth Amendment: "In all criminal prosecutions the accused shall enjoy the right of a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law [....]", and the Constitution's Article III, section 2: "The trial of all crimes, except in cases of impeachment; shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed."
The Constitution was not followed in the case of Bollman and Swartwout, who were transported to a faraway trial location that was neither the scene of the alleged crime nor a place previously determined by Congress. John Marshall recognized this when he delivered his opinion in their political "treason trials", Ex Parte Bollman and Ex Parte Swartwout, in the United States Supreme Court on February 13 and 21, 1807, which were conducted while the House was debating the second writ of habeas corpus resolution. In his Bollman decision, Chief Justice Marshall admirably upheld the rule of law by separating law from politics.
Appropriately, on February 13, Marshall decided that writs of habeas corpus should be granted--a direct rebuke to Jefferson and his associates. The point became almost moot when Marshall held that the alleged crime was not committed in the district (the District of Columbia) that was the scene of the trial. Thus, the defendants could not be tried in D.C. Instead, they should have been tried in New Orleans, the place where they had been seized and from which General Wilkinson's military had transported them.
The holding was an indirect criticism of the general's circumventions of the New Orleans court system and of Jefferson's assertion that the prisoners should be tried in Washington, D.C. where the courts could avail themselves of his aid. It was a decision that nearly caused Jefferson's Democrats to try to amend the Supreme Court's constitutional jurisdiction. Once again, impeachment was held like a guillotine over the heads of the federal judiciary to intimidate judges into political submission.
Burr Turns Disgrace into a March of Gracious Dignity
The government needed evidence to support charges against Burr, and the arrest and interrogation of Bollman and Swartwout by President Jefferson was to have been the key. From this it may be deduced that while, in a legal sense, Jefferson was not the prosecutor, in reality, he was--though indirectly, behind the scenes Other Burr adventurers, including Comfort Tyler at Mississippi and United States Senator John Adair, were likewise arrested in an unconstitutional manner. Needing evidence badly, the government attempted to induce Burr adherents at Bayou Pierre to swear to treasonable purposes. And to seal Burr's fate, there was always the dependable mixture of law and politics, in the form of a partisan judge.
On January 18, 1807--a month before his fellow adventurers faced Chief Justice Marshall and four days before Jefferson's message to Congress--Aaron Burr was hailed into the federal court of the Mississippi Territory. The presiding judge was Thomas Rodney, father of Caesar A. Rodney, Jefferson's own Attorney General. The Jefferson plan was to trap Burr in one of the partisan western courts and then transport him closer to the President for trial. Justices sitting in Washington, D.C. or Richmond, Virginia could feel the heat of the President's breath down their backs easier than a court in the faraway West. With the weight of the presidential authority bearing down against him, Burr was vulnerable to the attacks of any official who wished to bring a charge against him.
General Wilkinson, in his usual high-handed fashion, tried to ensure the success of the Jefferson plan by attempting to force Cowles Mead to transport Burr to Washington, as the general had done with all of his prisoners, to be delivered to Thomas Jefferson. The general hired someone to kidnap Burr from the power of the court if the need should arise. The need arose when the prosecutor, U.S. District Attorney George Poindexter, moved for a dismissal of the bill of indictment due to lack of evidence of criminal acts and lack of jurisdiction. That even the prosecutor didn't believe in Burr's guilt was annoying to Judge Rodney. Predictably, Rodney disagreed with his fellow presiding judge, Peter Bryan Bruin--who favored Burr--and the tie vote resulted in the evidence being presented to the grand jury, anyway.
On February 4--before Marshall's decisions in Bollman and Swartwout--the grand jury of the Territorial Court of Mississippi proclaimed Aaron Burr not guilty of the charge alleged. The grand jury's strongest criticism was reserved for the illegal searches and seizures conducted by government officials. Thomas Jefferson also felt the lash of the jury's scorn. The grand jury's comments reportedly were abridged when they were printed in the newspaper, the Natchez Mississippi Messenger of February 26, 1807.
The populace of the Mississippi Territory was now laughing at Wilkinson's assertions--all except Wilkinson, of course. If he couldn't crush Burr legally, then he was determined to do so illegally. Senator William Plumer gasped in horror that Wilkinson had hired assassins to kill Burr. If attempts on Burr's life were to fail, there was still the kidnapping scheme. The Governor of Mississippi proclaimed Burr a fugitive from justice (though not indicted of any crime) on the basis of Judge Rodney's refusal to discharge the prisoner and release him from his bail--another due process violation. In such an atmosphere, Burr wisely thought it safe to travel incognito, in disguise. Burr was apprehended in February (in what is now Alabama) and forced to undergo a humiliating thousand-mile journey before the public eye, first toward Washington, then turning around at Fredericksburg and going to Richmond, Virginia, being illegally denied recourse to the civil authorities in violation of due process, after being held in a military stockade for two weeks without arraignment before any civil court.
The military arrest was instigated by a penniless, but ambitious, lawyer who received over three thousand dollars' bounty for the delivery of Burr's person. The arduous march itself was a tribute to the strong will and sheer physical endurance contained within Burr's slight, fifty-one-year-old frame--a body that had withstood the shocks of military campaigns during the Revolutionary War. Afraid of rescue by the numerous Burr supporters who thronged the backwoods, Burr's military guard set a blistering pace of forty miles a day through some of the worst backcountry, during miserable weather. The marchers rode in a freezing downpour and slept on the ground, yet Burr never once complained. Indeed, it was Burr himself who ministered to the sick in Good Samaritan fashion: While housed in Fort Stoddert, Burr heard someone groaning in the next room, and, upon entering that room, found a man lying in his bed, very sick. He comforted the sick man with encouraging and uplifting conversation--for which the man was very grateful. Thus, Burr thought not of himself in his dire straits, but instead took the time to comfort a sick man. Such an incident was plausible given Burr's documented compassion in other instances.
Illegal military harassment was the reason why Burr appealed for civil protection when they passed through South Carolina. Burr's goal was to reach a civil court and clear his name, as he had done before in Kentucky and Mississippi--but the military denied him access to the civil court system.
So far, Jefferson's plan to entrap Burr in the endless, intricate maze of legal proceedings had failed because the western jurors kept inconveniently failing to indict the prey. John Marshall was Jefferson's last chance to doom Burr forever. How ironic it must have seemed to the President: John Marshall, his political opponent, the man who had thwarted him from the bench, the man whom Jefferson wanted to impeach, now held the key to the Burr affair. And it was also ironic that the very fact Marshall was in Richmond, Virginia in the first place was because Jefferson's attack on the federal judiciary had resulted in the repeal of the Judiciary Act of 1801, thus requiring federal judges to again ride circuit.
Aaron Burr, the Independent Man
The jury finally returned a verdict of acquittal at the end of United States v. Aaron Burr. After Burr and Blennerhassett stood trial on the misdemeanor charge and were acquitted, the prosecution moved the court to transfer them to another district (Ohio) for another trial. The defense argued that such a trial would be double jeopardy, contrary to the U.S. Constitution's Fifth Amendment ("nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"). Although the court granted the prosecution's motion, the case was not prosecuted and such a trial was not pursued.
Years after his trial in United States v. Aaron Burr had been concluded and he had been acquitted, Aaron Burr wrote to his son-in-law, South Carolina Governor Joseph Alston, in 1815, giving the reason why Burr had been subjected to such a political trial. Burr said that the set of politicians he called the "Virginia junto" were basically afraid of his political power, since they wanted to keep possession of the presidency within the grasp of their own clique group, and in order to do so, they even encouraged schisms within the Democratic-Republican Party. Burr wrote to encourage Alston to promote Burr's friend Andrew Jackson as a presidential candidate, in opposition to the "Virginia junto". In Burr's most telling line, he told Alston that the offense which the "Virginia junto" would never forgive, was that of someone having "talents" and "independence."
(A further reason for the Democrats' envy, and even fear, of Burr was his colonization plan. As a historical theory infers, they were afraid he would somehow diminish the political power held by slave-owning Southern politicians. The colonization of Burr's own vast land possibly could create a large, free state (where slavery likely would be outlawed and abolished) right in the middle of the slave-holding South. Such a colony, headed by a Northern politician like the brilliant strategist, Aaron Burr of New York, could wield a formidable political power in United States politics.)
Aaron Burr was the man envied and thus marginalized because he was brilliant and independent and had achieved numerous accomplishments--too independent for those who were afraid of his outstanding political abilities and who wished to keep the political scene exclusively for themselves. That was the real story of Aaron Burr's woes.
Few people ever read about Aaron Burr's compassion, his honesty (it was part of his creed to never read another person's letter over his shoulder, for instance), his forbearance in the face of verbal abuse and attack (he preferred to let the truth speak for itself, rather than try to refute every single argument in the newspapers), his steadfast loyalty and patriotism, his interest in educating youth, his strong anti-slavery views, his strong work ethic, his keen logic, his true desire for the best interests of the American people, his heroism during the Revolutionary War.... These things, as well as other facts usually neglected and overlooked about his life and career, are seldom mentioned when commentators and historians write or speak about Aaron Burr. All too often, Burr is unfairly (and inaccurately) portrayed as the "bad guy". This trend, however, is being gradually corrected in recent years, as more historians are learning to appreciate Burr's many fine qualities, among which was a genuine desire to free enslaved peoples. He highly valued freedom and independence.
The Christian Aaron Burr
Once, during Burr's later life, when a lady asked Burr why he didn't exonerate his reputation, given that he possessed the documents that would clear his name, he replied that he had already been exonerated, and when asked by whom, he pointed straight up to Heaven. Burr also indicated to the lady that he believed they would go to paradise if they believed in the Book (the Bible). The Bible was at the top of his recommended reading list. He also discovered the merit in his grandfather Jonathan Edwards' works. This is a little-noted item of interest about Burr: he apparently was a Christian.
A Lesson for All Times
His case offers a lesson to any historical place, and any historical time: Just because someone is extensively criticized in the press for political or personal reasons, that doesn't automatically mean he isn't the most worthy person, after all. Political candidates, as well as private persons, shouldn't be judged by newspaper spin. Instead, the person strong and independent enough to take the hard actions needed in order to set a course in the best interests of the American Republic, should be supported. He is the true western adventurer.
For further reading:
Information About Vice President Aaron Burr: His Duel with Alexander Hamilton and His Expedition to the West
Camerica: Trilateral Center of the New World Order
President Aaron Burr of Princeton College (a biography of the father of United States Vice President Aaron Burr)
Acknowledging the Almighty (for discussion about natural law in the United States Constitution)
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