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Why Burr's Treason Trial Is Relevant Today

In the next year, the public opinion will have occasion to revisit President George W. Bush’s attempts to ferret out and punish suspected terrorists. The president made it clear, before any trials at law occurred, that he thought the detainees were guilty. Some of the initiatives taken by his appointees, for example Department of Justice in-house rulings on the use of torture, have already been exposed to the public criticism. The prison camp at Guantanamo may or may not be disbanded, depending on who wins the presidential election this November. While much of the present controversy stems from 9/11, the basic questions of the relationship between the presidency and the High Court, and presidential pre-judgment of suspected threats to national security, has a precedent in the first years of our Republic. Before and during the treason trials of Aaron Burr, President Thomas Jefferson adopted a stance strikingly similar to that of President Bush.

Over the course of a year and a half, from the summer of 1805 to the winter of 1807, Aaron Burr traversed the Ohio and Mississippi River country talking up plans for land development, canal building, and banking starts. His comrades were leading state and national political figures, some going back to his Revolutionary War service days, others friends acquired when he was attorney general of New York, a senator from that state, and vice president of the United States. His political enemies, and they were legion, suspected that Burr had other plans, some as grandiose as invading Spanish Florida, Texas or Mexico. Worse, whispers abounded that he wanted to sever the western potion of the country from the eastern states. Certainly Burr’s correspondence with James Wilkinson, highest ranking officer in the U.S. Army and acting military governor of Northern Louisiana Territory could be read as plans for a filibustering expedition.

Thomas Jefferson’s response to these tales was at first cautious and disbelieving, and then high-handed and illegitimate. Jefferson had little use for his vice president after Burr appeared to court Federalist support in the 1800-1801 election crisis. Running on Jefferson’s ticket, Burr received the same number of electoral votes. When the question went to the Congress, Burr never publically announced his intentions, and Jefferson read Burr’s tepid private pledges of support as disloyalty. As Jefferson later wrote, Burr seemed a “a crooked gun...whose aim or shot you could never be sure of.”

On October 22, 1806, Jefferson called one of his infrequent full cabinet meetings. Its subject was Burr. But no action was taken. On the 24th of October, after another meeting with his cabinet, he ordered that letters go to the governors of the western states and the territory of Mississippi warning of unrest, and the next day he sent John Graham, secretary of the southern Louisiana Territory, to dog Burr’s steps. Graham would thereafter replace Wilkinson as civil governor of northern Louisiana–a reward for prospective services.

A month later, a fast rider had arrived at the White House from Wilkinson reporting the contents of a coded letter allegedly from Burr that Wilkinson had decoded, and warning that Burr and an army were descending the Mississippi intent on sacking New Orleans. On November 25, the president once again summoned his cabinet. This time Jefferson was prevented from precipitate action by James Madison. Asked whether U.S. troops could be used against Burr, Madison had replied that they were not to be used to quell a domestic disturbance. Jefferson persisted, what about the invasion of another nation’s lands? On November 27, he issued a proclamation much like Washington’s in the Whiskey Rebellion. “Sundry persons, citizens of the U.S. or resident within the same, are conspiring and confederating together to begin and set on foot...a military expedition...against the dominions of Spain.” Such an enterprise was “criminal” and all who joined in it must either “withdraw from the same without delay” or face the consequences. He did not name Burr, the chief conspirator, or Wilkinson, who had denounced the plot. But Republican newspapers named Burr as the culprit.

With Wilkinson’s report and the newspaper speculation in hand, Jefferson revealed the chief plotter’s identity. On December, 20, 1806, the president ordered his secretary of the Navy, Robert Smith, to warn all ships against entering into any aggressive act against Spanish territory. “Sir: A military expedition formed on the western waters by Colonel Burr will soon proceed down the Mississippi, and by the time you receive this letter will probably be near New Orleans. You will, by all the means in your power, aid the army and militia in suppressing this enterprise.”

Burr was nowhere near New Orleans, nor did he have an army at hand. Instead, he was defending himself in a Kentucky federal court against the charge of treason. Young Henry Clay spoke for Burr, and convinced a grand jury that there was no grounds for an indictment. Burr then gathered up a small band of friends and on a handful of flatboats began to travel to lands on the Arkansas side of the Mississippi that he had bought for development. But Jefferson’s land was long and those who would help him eager to catch and detain Burr. When he arrived near Natchez, he once again had to defend himself against a charge of treason. Again a grand jury refused to find a true bill.

If the offense was levying war against the United States, and the overt act required for that charge took place in Ohio, where Burr arranged for men and equipment to assemble, or in Kentucky, where Burr placed orders for flatboats, or the Mississippi Territory, where Burr and his small band were detained, then grand juries in those jurisdictions were the correct places to seek indictments. Burr's innocence was to be presumed until he was proven guilty at trial.

These basic tenets of criminal procedure, and the guarantees of fair trial they reflected, did not deter Thomas Jefferson from ordering Burr’s arrest, his removal to trial in a court a thousand miles from the site of his presumed crimes, his being held incommunicado for months, without access to counsel, while Jefferson announced Burr’s guilt to the Congress and the country.

Jefferson’s message to Congress on January 22, 1807 ignored all of these nice points of law, telling a story of a nation in dire peril from Burr’s tiny band. “He found at once that the attachment of the western country to the present Union was not to be shaken; that its dissolution could not be effected with the consent of its inhabitants, and that his resources were inadequate, as yet, to effect it by force. He took his course then at once, determined to seize on New Orleans, plunder the bank there, possess himself of the military and naval stores, and proceed on his expedition to Mexico; and to this object all his means and preparations were now directed. He collected from all the quarters where himself or his agents possessed influence, all the ardent, restless, desperate, and disaffected persons who were ready for any enterprise analogous to their characters. He seduced good and well-meaning citizens, some by assurances that he possessed the confidence of the government and was acting under its secret patronage.” All these Jefferson presented as matters of fact, though they were material to Burr’s trial and had yet to be proven at trial.

Jefferson prepared that story not only to cap the public campaign of vilification against Burr, but to prepare Congress for Republican Senate leader William Branch Giles’s motion to suspend the writ of habeas corpus. This was the legal process by which individual prisoners held in custody could force the government to explain why they were confined. The Constitution provided that Congress could suspend the writ, but only “when in cases of rebellion or invasion the public safety may require it.” The framers of the Constitution debated the clause only briefly, with some arguing that there should never be a suspension. In the end, judges were free to refuse to “return” the writ, and presumably would refuse when the occasion demanded.

Burr was tried for treason in Richmond, Virginia, the grand jury proceedings and trial taking the entire summer, and bankrupting an already financially strapped Burr. When a jury in Richmond found Burr innocent (after Chief Justice John Marshall, sitting on the circuit court bench refused to allow introduction of the Burr Wilkinson letter until the prosecution substantiated its relation to the offense for which Burr was indicted), Jefferson insisted wanted that Burr and his suspected confederates be tried everywhere that they had stopped on their way west. Wiser heads in his administration intervened, leaving him fuming that “We had supposed we possessed fixed laws to guard us against treason and oppression. But it now is apparent that we have no law but the will of the judge.” Swallowing this bitter pill, he proclaimed to Congress, that “the enterprises against the public peace which were believed to be in preparation by Aaron Burr and his associates, of the measures taken to defeat them, & to bring the offenders to justice. Their enterprises have been happily defeated.”

One cannot overemphasize the continuing importance of the Burr precedent. Too often and too easily those whose opinions we oppose or suspect become “traitors” in our minds. The loose and harmful misuse of the term becomes far more serious when the executive and the Congress–the elected branches–fear for national security, or engage the nation in war, or seek out internal enemies. Then the cautions of the Burr trial are set aside intentionally. The demand for quick and certain justice overwhelms the far more subtle (if far more fundamental) claims of procedural fairness and right. The blindfold is tightened on the statue of justice, and the scales she holds are loaded down on one side by panic and partisanship. Laid in the other pan, the rights of defendants have little weight. Yet surely this makes the Burr trials even more important to us, as an object lesson in the dangers of hasty judgment, colored by political and personal animosity.