Thomas Jefferson, the Apostle of Americanism

by Gilbert Chinard

Shortly after Marshall, in Washington, had refused to indict Bollman and Swartwout on the count of "levying war" against the United States, Burr was finally arrested and taken under military escort to Richmond, there to be delivered to the civil authorities after Marshall had signed a special warrant (March 26, 1807). After long skirmishes between the prosecution and the defense, legal moves and countermoves, Burr was indicted under two counts,—treason and high misdemeanor. On the first charge the jury rendered a verdict to the effect that "We of the jury say that Aaron Burr is not proved guilty under this indictment by any evidence submitted to us; we therefore find him not guilty."

This was a most unusual and illegal form of rendering a verdict and the jury evidently intended to emphasize the fact that the evidence submitted did not warrant a conviction, although they reserved their opinion as to the real guilt of Colonel Burr. Marshall overruled objections to the form of the verdict which threatened a reopening of the case and decided that it would be recorded as "not guilty." Burr was soon recommitted on the second count and declared not guilty by a second jury. Upon which a third charge was brought in by the prosecution and Burr summoned to appear at the session of the Circuit Court of the United States to be held at Chillicothe in January, 1808. He never appeared and his bond was forfeited; it is more than doubtful that he would have been convicted.

A serious discussion of the merits of the case would necessitate a minute analysis of all the evidence placed before the jury and cannot be undertaken here. Several attempts have been made to rehabilitate Aaron Burr's memory, although certain facts are so patent that they cannot be overlooked by the most indulgent biographers. It is a curious bend of the popular mind that the greatness of the conspiracy seems an excuse and attenuation of the most evident guilt. There was something apparently heroic in the ambition of that man who wanted to carve for himself an empire in the wilderness and to plunder the treasures of the mysterious Southwest. Then, by contrast, the obstinacy of Jefferson in using every means in his power and in the power of the Federal Government in order to obtain a conviction, has been represented as a display of pettiness unworthy of the chief of a great nation. Nor is this tendency restricted to the impulsive and emotional masses; it creeps into the accounts of the trial given by the most judicial historians, and I am not certain that it is entirely absent from Beveridge's treatment of the Richmond proceedings.

Legally speaking, it is difficult to find fault with the findings of Marshall, with the definitions he gave of "treason" and "overt act", with his sifting of the evidence and, except in one or two cases, with his behavior during the trial. On the other hand, Jefferson has been accused of having unduly interfered by sending detailed instructions to the district attorney, by coaching him on several occasions, and by attempting directly and indirectly to arouse public opinion against a man who was on trial for his life, but who finally could not be convicted on any count. After such an interval of time, it is easy to find fault with the conduct of the Executive, and it cannot be denied that he acted in a very high-handed manner, condoned acts which were technically illegal and maintained without sufficient proofs of Burr's guilt that there was not "a candid man in the United States who did not believe some one, if not all, of these overt acts to have taken place."[453]

On the other hand, if we try to place ourselves in the atmosphere of the time, it is equally easy to find explanations that to a large extent justify Jefferson's attitude. It must be remembered that the President was not unaware of Burr's intention "to form a coalition of the five eastern States, with New York and New Jersey, under the new appellation of the Seven Eastern States."[454] If Burr's machination with the English minister to effect a separation of the western States were still unknown, there was little doubt about his plans. All of Burr's ambitious schemes failed miserably, but it is perfectly natural that the Government should have been seriously alarmed at the time. They did not know of Wilkinson's shameful deals with Spain, but they had every reason to believe that a man who had already plotted a secession of the western territory and happened to be in charge of that territory and in command of the Federal army was scarcely to be depended upon in an emergency. For years the West had been very restive, New Orleans was full of discontented Creoles, and if war had not been officially declared with both England and Spain, it was felt that it could break out at any time. None of these considerations could be brought out before the jury, but they amply warranted some action of the Executive. The first step taken by Jefferson was to warn the people of the existence of a conspiracy. If we remember again that Aaron Burr was at that time roaming at will in a part of the country sparsely settled, where he counted many friends, where communications with Washington were slow and rare, it is difficult to see how the President could have done less.

After the conspirators were arrested the situation changed entirely. They had been delivered to the civil authorities, they were to appear before a regular court and given trial by jury; they no longer constituted a public danger. It must be admitted that Jefferson himself declared to his French friends, Lafayette and Du Pont de Nemours, that Burr never had a chance to succeed and "that the man who could expect to effect this, with American material must be a fit subject for Bedlam."[455] This is hard to reconcile with the statement which comes immediately after, that "the seriousness of the crime demands more serious punishment", and particularly with the instructions sent to George Hay. One may suspect that Jefferson saw in the trial of Burr an opportunity to test the loyalty of the Chief Justice to the Constitution and to the Government and allowed himself to be carried away by political preoccupations which had nothing to do with Colonel Burr. This appears clearly in one of the letters to Giles:

If there has ever been an instance in this or the preceding administrations, of federal judges so applying principles of law as to condemn a federal or acquit a republican offender, I should have judged them in the present case with some charity. All this, however, will work well. The nation will judge both the offender and judges for themselves.[456]

This was reiterated in the instructions sent to George Hay after the first acquittal of Burr, that no witness should be permitted to depart

... until his testimony has been committed to writing, either as delivered in court, or as taken by yourself in the presence of Burr's counsel.... These whole proceedings will be laid before Congress, that they may decide, whether the defect has been in the evidence of guilt, or in the law, or in the application of the law, and that they may provide the proper remedy for the past and the future.

The intention to scrutinize the documents to uncover any bias of Marshall and use any such evidence against the Chief Justice is even openly admitted: "I must pray you also to have an authentic copy of the record made out (without saying for what) and to send it to me; if the Judge's opinions make out a part of it, then I must ask a copy of them, either under his hand, if he delivers one signed, or duly proved by affidavit."[457] Who could deny after reading this that Jefferson's intention was to push vigorously the attack against the judiciary, and to institute impeachment proceedings against Marshall on the slightest justification? Thus the trial of Burr became a test of strength between the executive and the judiciary, between the President and the Chief Justice; it was fought out in the courtroom the more fiercely as the two antagonists were kinsmen and brought into it the obstinacy and animosity of Southern feudists.