September 1, 1807 – Chief Justice John Marshall Acquits Aaron Burr of Treason

Thomas Jefferson bore a grudge against Aaron Burr for running against him in the 1800 presidential election as well as opposing him on other matters. Jefferson also feared Burr might challenge Jefferson’s chosen successor, James Madison. He decided to get Burr out of the way and settle his scores against him at the same time. The charge of treason was a convenient method for Jefferson to get rid of Burr (in a definitive way, since the punishment for treason was death by hanging). Accusations against Burr were provided by General James Wilkinson, who even Jefferson knew was “notoriously unreliable” and who was a spy on the payroll of Spain. Nevertheless, Jefferson addressed Congress in January of 1807 declaring Burr “guilty of treason” by virtue of Wilkinson’s allegations and ordering his arrest.

The case of United States v. Aaron Burr commenced that summer in Richmond, with Supreme Court Chief Justice John Marshall presiding.

Portrait of Burr, undated (early 1800s)

Joel Richard Paul, in his history Without Precedent: John Marshall and His Times, noted that Jefferson “was not interested in the truth about Burr.” Jefferson not only publicly voiced his confidence that Burr was guilty but sent instructions to the prosecutors on how to conduct the trial. He also included a stack of signed pardons for anyone willing to testify against Burr.

But the prosecutors had little to work with: the “witnesses” they presented gave muddled and contradictory testimony, and Wilkinson’s “evidence” was proven to have been fabricated. Moreover, there was the small matter that the Constitution required that treason be defined by an “overt act” by the accused. Alas, there wasn’t any.

General James Wilkinson

Chief Justice Marshall didn’t have to intervene much to protect the defendant, since the case against Burr was so obviously without merit. Nevertheless, when he directed the jury to acquit Burr of treason in September 1, 1807, the press launched vicious attacks on Marshall. Enraged Republicans accused Marshall of playing party politics and siding with a traitor against the U.S. President. Marshall knew this risk was inherent in his verdict, writing in his opinion:

That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. . . . But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace. That gentlemen, in a case the most interesting, in the zeal with which they advocate particular opinions, and under the conviction in some measure produced by that zeal, should, on each side, press their arguments too far, should be impatient at any deliberation in the court, and should suspect or fear the operation of motives to which alone they can ascribe that deliberation, is, perhaps, a frailty incident to human nature; but if any conduct on the part of the court could warrant a sentiment that it would deviate to the one side or the other from the line prescribed by duty and by law, that conduct would be viewed by the judges themselves with an eye of extreme severity, and would long be recollected with deep and serious regret.”

Jefferson fumed for years over Marshall’s “twistifications” in Burr’s trial. (Paul, op cit., p. 295)

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