Treason Trial of Aaron Burr (Fifth Essay)
Bill Long 10/18/07
IV. Two Definitions of "Levying War"
Marshall heard arguments on the motion for several days. About six or seven of the attorneys chimed in, with two definitions of "levying war" being broached. The "broader definition," favored by the prosecution, reached back to a Feb. 1807 opinion written by Marshall himself in a commitment hearing of one of Burr's co-conspirators. In that Bollman case Marshall wrote the following:
"It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the countrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there mast be an actual assembling of men for the treasonable purpose, to constitute a levying of war," quoted in Melton, Aaron Burr: Conspiracy to Treason, p. 150.
This was the kind of "broad definition" of levying war that the prosecution loved, because all it required for proof was an assembly for a treasonable purpose and some kind of participation in the "league." The treasonable person didn't have to be present. But they were worried by the much narrower language of Marshall's April 1 ruling not to commit Burr on the treason charge. You see, friends, law is an ever-changing thing, often as ephemeral as the wind blowing across the plains.
Thus, when Burr made the motion on August 20 to determine if the actions at Blennerhassett's estate early in December 1806 constituted "levying war" in the language of the statute, he was hoping tha tJustice Marshall would adopt a narrower definition of "levying war." In the narrower definition favored by the defense, the one charged with treason either had to be present when the overt acts were committed or, if absent, had to be directly involved in or had ordered these acts.
There also was one other thing the defense wanted the Chief Justice to decide--that he, rather than the jury, would come up with the proper definition of "levying war." That is, Burr wanted the Court to recognize the question of "levying war" to be a legal and not a factual question.
Over the next week, then, the lawyers made what many scholars have considerd to be some of the most eloquent, searching, well-researched arguments in American legal history. Justice Marshall's August 31 opinion answered all the questions and really decided the case, even though the jury came back with their verdict on the next day.
V. Justice Marshall's August 31 Opinion
Just as a lover learns to recognize the beloved by his or her sounds, movements, or gestures, so those who are lovers of the US Supreme Court's history have learned to recognize a "Marshallesque" style of argument. As one author describes it:
"He would start by announcing sweeping principles, and then he would interpret the law's language in light of those grand statements. Next he would follow where the interpretations led, making the outcome seem inevitable. Thus he reached his decision. He was a master of the process, if ever it had a master," Melton, p 214.
I need not go through Marshall's entire opinion; it is online here. Here is the "Marshallesque" flourish to begin the argument:
"If a rebel army, avowing its hostility to the sovereign power, should front that of the government, should march and countermarch before it, should maneuver in its face, and should then disperse from any cause forever without firing a gun--I confess I could not, without some surprise, hear gentlement seriously contend that this could not amount to an act of levying war...A case equally strong may be put with respect to the absence of military weapons. If the party be in a condition to execute the purported treason without the usual implements of war, I can perceive no reason for requiring those implements in order to constitute the crime."
But one should be wary in reading a judge like this. If he seems to be inclined to treat the prosecution favorably at the outset, it is because he will now ambush them. And so he did. He next read his Bollman decision of earlier in the year to require an act of actual force in order to meet the Constitution's definition of treason. Thus, the act of force must have occurred on the island on those December nights. Burr need not have been present in order to be guilty of treason, to be sure. But, and here was the kicker, the government had to prove the intimate connection between Aaron Burr on the Cumberland River (where he was in December) and the actual acts of force on Blennerhassett island. Or, in other words, two witnesses had to come forward saying that they had seen acts of force on Blennerhassett that night and that Burr had procured that force.
None of the witnesses testified to that and, indeed, it probably would have been impossible had they been able to do so. The only thing that happened on Blennerhasset that evening was that a federal agent had slipped onto the estate as the conspirators were trying to make their exit, and one had warned the agent at the point of the gun to desist from his attempt to arrest them. This was, if anything, a rather common criminal act of resisting arrest--and had nothing to do, really, with Aaron Burr's having ordered or procured that act of violence.
When the prosecution heard Marshall read his decision on the 31st (witnesses said it took him three hours to do so), their hearts must have sunk because Marshall had set a bar for them that they could not surmounted. The jury quickly saw the writing on the wall and returned within moments after being dismissed on Sept. 1 with the verdict quoted at the beginning of the previous essay. Aaron Burr, though not necessarily a free man (he still had to face the charges under the Neutrality Act of 1794--making it illegal for an American to wage war against another country at peace with the United States), had been acquitted of the "big charge." Then the prosecution brought up the Neutrality Act violations, but it was dispirited, Marshall kept making rulings favoring the defense, and the prosecution was unable to show that Burr had planned a peacetime invation of Floriday, Mexico or another part of New Spain. "Not Guilty" was the verdict returned.
Still the prosecution didn't give up. It wanted Marshall to remand the case to another circuit so a fresh round of treason and Neutrality Act violations could be brought against Burr. Marshall decided that he only had to commit Burr (and Blennerhassett) for a Neutrality Act violation. He let Burr post bail and Burr, as everyone knew he would, soon skipped the country.
But that is another story, and we have reached the end of ours. Burr was acquitted but was treated like a guilty man wherever he went. It is eerily similar in our own day to the fate of OJ Simpson....whose trial has been denominated the "trial of the 20th century."
Copyright © 2004-2009 William R. Long