by Peter Charles Hoffer. Lawrence, KS: University Press of Kansas, 2008. 224pp. Cloth. $35.00. ISBN: 9780700615919. Paper. $16.95. ISBN: 9780700615926.
Reviewed by James H. Read, Professor of Political Science, College of St. Benedict and St. John’s University. Email: jread [at] csbsju.edu.
Aaron Burr was a central character in three fascinating political dramas of the early American republic: the 1800 presidential election, when an electoral college tie between Burr and Thomas Jefferson took 36 ballots to resolve; the fatal duel with Alexander Hamilton in 1804; and Burr’s high-profile treason trial of 1807, where Burr was suspected of plotting violently to sever the Kentucky region from the United States, or perhaps to lead an illegal invasion of Spanish territories, or perhaps something else altogether. No one knew at the time, and no one knows today, exactly what Aaron Burr intended when he arranged for a large gathering of men and boats on Blennerhassett Island in the Ohio River on December 9, 1806.
Burr was publicly accused of treason by President Thomas Jefferson, who declared to Congress in advance of any trial that Burr’s “guilt is placed beyond question.” In a trial presided over by John Marshall (Chief Justice of the Supreme Court, but here serving as presiding judge of the federal circuit) the jury acquitted Burr of treason on September 1, 1807 (U.S. v. BURR 1807).. The treason trials of Burr and his alleged co-conspirators Erich Bollman and Samuel Swartwout are described in detail in this engaging and readable book by Peter Charles Hoffer (University of Georgia), a specialist in American legal history.
Any reader looking for final and definitive explanation of what exactly Burr was up to will not find it here. By the end of the book Burr’s character and actions remain as mysterious as before. Hoffer presents his own conjectures, but resolving Burr’s plan (if he had one) is not the purpose of the book, and its major contribution lies elsewhere.
This book is about Burr’s trial (and those of his alleged co-conspirators). Its central protagonist is not Burr at all but John Marshall, who in the course of the episode generated key precedents on the meaning of treason (the only crime defined in the Constitution), whether and when habeus corpus may be suspended, on the use of evidence, whether the executive branch is bound by the Sixth Amendment to deliver information essential to the accused’s defense, and many other matters. Hoffer observes that most historians treat the Burr trial as a political drama, but maintains that the legal story is equally important (p.185).The major accomplishment of THE TREASON TRIALS OF AARON BURR is convincingly to argue that the Burr trial was an important moment in the history of American constitutional law.
The first two chapters of the book present biographical sketches of the story’s main characters (Burr, Jefferson, Marshall, and as offstage ghost, [*65] Alexander Hamilton) and describe what is known and alleged about Burr’s western adventures. The narrative here is necessary but breaks no new ground. The real action and major contribution of the book, the legal and constitutional story, begins at Chapter 3, which details the history of English treason law and how it was transformed by the American Revolution and Constitution.
In English law the crime of treason was extremely broad, including not only overt acts “but merely the discussion of an act.” Treason law was designed less to protect the nation as a whole than to protect the king against actual or potential political opponents: “The overbroad and vague statute allowed the crown to prosecute its most vocal opponents as traitors;” criticism of the crown or “seeking to sway the sentiments of the king’s subjects against him” could be construed as treason (pp.58-59). The American revolutionaries found themselves in a peculiar position with respect to treason law: on one hand they needed to protect the fragile new nation against enemies, which required some kind of treason law; on the other hand, the revolutionaries themselves could all have been indicted for treason if independence had failed, which sensitized them to the dangers of a too-sweeping definition of treason.
This ambivalence produced the constitutional clause on treason, which both defines and limits the meaning of the crime: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. 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” (quoted and discussed p.66). That treason shall consist “only” of levying war or aiding enemies, and that it must involve an “overt act” (i.e. not mere intention or discussion) prevents Congress from legislatively broadening the definition of the crime. The requirement of two witnesses creates a high burden of proof. Hoffer quotes from an important commentary on the treason clause in the 1791 law lectures of James Wilson, a member of the committee of detail that put this language in final form and later Associate Justice of the Supreme Court. The crime of treason, Wilson observed, is “dangerous and hostile to the state,” but at the same time the false imputation of treason “has been and may be dangerous and oppressive to the citizens.” The purpose of the constitutional language on treason was both “to secure the state, and to secure the citizens” (p.66).
This strict constitutional definition of treason, as interpreted by John Marshall, was key to the outcome of the Burr trial. For whatever Burr may or may not have been up to in 1806, the prosecution could produce no witnesses to any “overt act” of “levying war” against the United States. Burr himself was not on Blennerhassett Island on December 9, 1806. If as alleged he intended or discussed the violent separation of the west from the Union, this does not qualify as an overt act. If Burr had actually engaged in unauthorized military action against Spanish territories, this would have violated the Neutrality Act of 1794 but likewise falls short of treason. [*66]
If the Burr trial simply involved the straightforward adjudication of the Constitution’s restrictive treason clause, the legal story would have been a very short one. But when political stakes are high, as they were in this case, and especially in cases involving real or perceived threats to national security, constitutional restrictions are easily swept away. This occurred in at least one treason case preceding Burr’s (John Fries, leader of an anti-tax riot), and it has occurred in numerous instances (typically under charges other than treason) since Burr’s trial up to our own day. What makes John Marshall the true hero of Hoffer’s story is Marshall’s unwillingness to allow the Jefferson administration to cut legal corners in its prosecution of a potentially dangerous defendant. Bollman and Swartwout, Burr’s alleged co-conspirators, as well as Burr himself, were initially denied habeus corpus or any of the Sixth Amendment protections of accused persons. Marshall overturned the habeus corpus denial as chief justice in EX PARTE BOLLMAN, which set the tone for Burr’s later trial (where Marshall presided as circuit court judge). The Jefferson administration based its public case against Burr on a letter allegedly written by Burr and copied in someone else’s handwriting, which Jefferson refused to disclose as evidence. Marshall ruled against Jefferson’s claim of executive privilege, and the document was eventually submitted to the court.
Hoffer occasionally signals the contemporary relevance of the issues raised in the Burr case. “Too often and too easily those whose opinions we oppose or suspect become ‘traitors’ in our minds. The harmful misuse of the term becomes far more serious when the executive and the Congress – the elected branches – fear for national security, engage the nation in war, or seek out internal enemies” (p.5; see also pp.101, 206). He describes the precedent Burr’s acquittal set for limiting the scope of later treason prosecutions, and suggests that if Burr had been convicted, “a precedent would have been set to arrest, try, and convict for treason anyone who said anything that the regime in office thought gave aid and comfort to an enemy” (p.187).
The book’s strength is its analysis of the legal and constitutional issues raised by the Burr trial. Hoffer’s readings of character are more open to question. He seems to have a sure understanding of Marshall and is at least plausible in his judgment of Jefferson. His interpretation of Burr’s character is borrowed from Burr’s most sympathetic biographers: Burr was a man who truly believed what he said, a true gentleman who “always gave back full measure of friendship and loyalty” (p.16), whose “public conduct was always above reproach” (p.189). Hoffer does not believe Burr had any treasonable or aggressive plans in 1806 but instead conjectures that Burr was engaging in “a sweeping entrepreneurial shell game, a confidence scam” to keep his creditors at bay (p.190). Even if true, this explanation hardly squares with his relatively favorable comments on Burr’s character. Hoffer’s mercifully brief remarks on Alexander Hamilton are completely off-base: Hamilton is portrayed as a “land speculator” who like Burr sought public office as a means of private gain and whose opposition to Burr originated from Burr’s defeating Hamilton’s father-in-law for a Senate seat in 1791 (pp.14, 24, 118). [*67]
Hoffer’s questionable judgment of Burr (and his wholly misleading picture of Hamilton) does not compromise his central argument in the book. Whatever Burr’s character and intentions, the fact remains that, by the Constitution’s definition of treason, and its requirement of two witnesses to an overt act, the case against Burr was extremely weak. At the same time the political pressure to overleap those constitutional limitations was very strong. John Marshall shines throughout this book, even if Burr remains in the shadows.
To the ultimate question, “why does Burr matter?”, Hoffer replies that the Burr trials proved “that judges had the power to deny to the other branches ill-founded prosecutions of unpopular and even dangerous men. This is the most important precedent of the Burr treason trials, the most important story we can tell about law in the early republic, and one we have to remember” (p.188). If the continuing popular fascination with so dubious a character as Aaron Burr can be turned to some constructive purpose, Hoffer has found it.
EX PARTE BOLLMAN, 8 U.S. 75 (1807).
U.S. v. BURR, 8 U.S. 469 (1807).
© Copyright 2009 by the author, Lesley A. Jacobs.