A case was tried in the Federal Court for the Circuit of Virginia, which was of fundamental significance to governmental power and individual rights in America. The case is known as the United States versus Aaron Burr. The charge against Aaron Burr, former Vice President of the United States, was treason. It had been brought on the urging of the President himself, Thomas Jefferson. At stake, however, was more than Burr's guilt or innocence. The trial of Aaron Burr turned on the vital question, to what extent can the judicial process and to what extent will it protect an individual who is prosecuted by his own government? Or putting it more plainly, who is supreme, the will of the government or the law? In the first decades of the 19th century, two of the great men who dominated the political scene in America clashed over the question. Chief Justice John Marshall and Thomas Jefferson, President of the United States. The two men had clashed before, personally as well as politically. Of supreme importance for Thomas Jefferson was always the will of the people, as expressed by the voice of their elected government. Even the Constitution and the judiciary must bow to it. Of supreme importance to John Marshall, in turn, was always the law, as enshrined in the principles of the Constitution. Nothing was superior to it. Until changed by amendment, it controlled presidents and legislatures. Both men believed profoundly in the tenets for which they fought. For both, consequently, the trial of Aaron Burr was also a trial of their deepest and most sincere convictions. Don't let him by. There he is. In March of 1807, Aaron Burr was brought into Richmond, Virginia by an armed guard. In 1800, Burr had come within a hair's breadth of becoming President of the United States. From 1801 to 1804, he had served as the nation's third vice president. Shortly thereafter, he had met Alexander Hamilton in a duel, killing his opponent and destroying his own career. From 1805 on, he had traveled through the West, dreaming up extravagant schemes, conquests, and adventures. He now faced a trial for his life. Aaron Burr, President Jefferson had claimed, was guilty of treason, guilty beyond a doubt, and the nation largely believed him. The evidence against Burr consisted of reports to the President by men whom Burr had believed to be his friends and allies, General James Wilkinson, General William Eaton, and Colonel George Morgan. Burr, these men had told the President, intended to attack Mexico, to separate the Western territories from the Union, and to establish an independent empire with himself at the head. The evidence against Burr on the whole was damaging. It was not, however, conclusive. No bail, Mr. Hay. No, Mr. Burr held without bail, in jail, sea to it, much too dangerous a man to be allowed to walk about free. May I speak frankly, Mr. President? Speak frankly, Mr. District Attorney. You're pressing too hard, Mr. President. My friend Dr. Franklin used to say that a cat in gloves catches no mice. Let me remind you, Mr. President, that we have the Chief Justice himself to contend with. Burr will be tried in the Federal Court for the Circuit of Virginia. Mr. Marshall is the presiding judge. Mr. Marshall, Mr. Marshall. Well, let's see that we don't give Mr. Marshall room to let traitors go about spreading sedition, setting themselves up as kings whenever the fancy strikes them. Mr. President, this is a difficult case. And that man Marshall is in a position to make it more difficult still, which he will do, mark my word, if we give him an opportunity to say that the executive is trying to prejudice the case. You know how he feels about the independence of the judiciary. It's a bit late for that now, don't you think? The President, in his message to Congress, has pronounced Burr guilty, guilty beyond doubt. Before he stood trial, yes. A blunder, Congressman, nothing less than a blunder. I meant to alarm the nation, no more, no less. Which you succeeded in doing, Mr. President, fortunately. If we hadn't pressed this case, Mr. Hay pressed it hard. By now, we're looking at the business end of Mr. Burr's cannons, so let's keep pressing. By all means. Well, now, Mr. Hay, you said this is a difficult case. Why is the case difficult? It rests on the testimony of General Wilkinson, General Eaton, and Colonel Morgan. Testimony to the effect that Burr intended to divide the Union, to convict him. We need proof that he actually made the attempt. This time, we don't have it. Well, then, for heaven's sake, let's move. Mr. President, I urge that you give this your fullest personal attention. No, Congressman, no, no, no. Let the President step back from this case. I can't step back from this case, Mr. Hay. You know that. The nation's safety is at stake. I'm responsible, as much as I dislike hearing myself bark like an old watchdog. Mr. President, I wish for nothing more, but that justice may be done. I won't avail myself of questionable testimony, and I don't intend to take advantage of reports that have resounded through the newspapers. I rejoice that men of talent and liberality have been found to come forward to fend the accused, notwithstanding the general opinion that he's guilty. Why? Because I want the American people convinced that there's no disposition on the part of this government or myself to persecute Aaron Burr. Persecute Aaron Burr. I don't propose to persecute Aaron Burr, Mr. Hay. I propose to punish him for the crime of which without any question he is guilty. There are serious doubts, Mr. Hay, here and abroad, whether this nation, so recently formed, can and will defend itself against all enemies, internal as well as external. Now, unless we lay these doubts to rest, we cannot last. I want it understood. I want it understood in England, in Spain, and in America, that the United States are a viable and forceful political structure and that whoever attacks them will feel the consequences. I cannot step back from this case, Mr. Hay, nor will I stop pressing it, precisely because it is a difficult case, and precisely because we have Mr. Marshall to contend with. Go now, Mr. Hay, go and put the law to work for us. On March 30th, Aaron Burr appeared at a hearing held before Chief Justice John Marshall presiding judge of the federal court for Virginia. Purpose of this hearing held in Richmond's Eagle Tavern was to determine whether or not Aaron Burr should be released on bail while waiting for the grand jury to assemble. Chief Justice John Marshall sat district court judge Cyrus Griffin, prominent Virginia jurist. Richmond Attorney John Wickham spoke in behalf of the accused. District Attorney George Hay argued for the government. Your Honor, the government accuses Aaron Burr of having planned and set in motion an armed insurrection. His aims, as we shall prove, were to separate the wettened territories from the union, to capture by force the city of New Orleans, to make war on Mexico, and to establish a large independent empire with New Orleans' capital and himself at the head. War on Mexico, the attack on a friendly nation is a misdemeanor, a charge on which he may be released on bail. The overthrow of the federal government in the western territories, however, is treason, a charge far too serious to admit a bail. The government therefore asked that the accused be committed to jail at once without bail, and to be held there until a presentation of his case is made to the grand jury. Is there evidence to support these charges, Mr. Hay? Mr. Burr's intentions are fully outlined in the letter written by himself to General Wilkinson, and in reports of General Wilkinson and General Eaton to the president. Will we be able to see those letters, Mr. Hay? We're here with submitting them in evidence. Are these the originals, Mr. Hay? No, sir. They're copies. Are they sworn to? No, sir. Yes, Mr. Whittle. We keep on hearing about Colonel Burr's intention. The crime of treason requires that war be actually levied against the United States. If an act of war was indeed committed, the government has yet to show us evidence of it. I was coming to that, Your Honor. The government will prove to the satisfaction of this court that war was levied against the United States by the accused on Benner-Hassets Island in the state of Virginia on the Ohio River. Our men assemble there on his orders and under his command in November and December of last year, and suitably equipped for their violent enterprise. Men provided with boats, weapons, masses of ammunition, and supplies. On December 9th, by orders of the governor of the state of Ohio, ten boats were intercepted on the river. Others, some of them unfinished, were seized in the boatyard. Some 200 barrels of supplies were confiscated. A few of the boats escaped. They alluded a watch that was set at Cincinnati and went on down to the mouth of the Cumberland. Mr. Hay, was Colonel Burr among those arrested on the Ohio? No, sir. Colonel Burr wasn't actually present at the sight of the alleged conspiracy. That is correct, Your Honor. As a matter of fact, he was hundreds of miles away. What of it? Whatever went on on that island, Mr. Burr planted and set it in motion. We shall prove this to the satisfaction of the court. On what evidence, Mr. Hay? On the letters which we submitted, Your Honor. Burr's letters to General Wilkinson and the reports of General Wilkinson and Eaton to the President. But these are copies, Mr. Hay, not sworn to. I doubt that any court in the country would accept them as evidence for so serious a charge. We shall produce all the witnesses this court may require to establish their veracity. When? In due time. In due time? Mr. Hay, if you wish Colonel Burr to be held on the charge of treason without bail, you must kill probable cause now. Here. I don't quite understand why you're not better prepared, Mr. Hay. It's been four months since those men were arrested. Blunner has its island as hundreds of miles away in the very thick of our western wilderness. We need time. I'm astounded, Mr. Hay. I'm astounded at the government's conduct of this case.  Guilty beyond doubt. With the evidence to support this charge, if it exists at all, lies buried somewhere in the, what did you call it, the very thick of our western wilderness? I love the opinion, Mr. Hay, that our laws do not permit that the hand of malignity may grasp any individual against whom its hate might be directed, or whom it may capriciously seize, charge with some secret crime, and put him on proof of his innocence. Objection, Your Honor. That's a very unfortunate choice of words. Your objection is noted, Mr. Hay. As to your request that Colonel Burr be held on the charge of treason without bail, the court denies it. Lack of evidence to support your charge leaves us no choice. John Marshall declined for lack of evidence to hold Aaron Burr on the charge of treason without bail. He acknowledged, however, that there was probable cause for a charge of high misdemeanor. Burr, after all, in a letter to a man whom he believed to be a close ally, General James Wilkinson, had clearly set forth a plan to attack a friendly neighbor, Mexico. We on bail, Burr would now await a hearing of his case before the grand jury. It was still possible for that jury to indict him for treason, but the prosecution and President Jefferson knew now that they had a fight on their hands. Drop the treason charge, Mr. Hay. Drop the treason charge, yes, Mr. President. Press the lesser one. High misdemeanor. Burr's plans to attack Mexico. We have those in his own writing. We've got a conviction on misdemeanor. That's virtually certain. Judgement, Mr. Hay, judgment, who does that mean, say it's fled the brutish beasts. I am referred to as the hand of malignity, an open court accused of grasping Mr. Burr of a helpless victim of my hate, capriciously. And you propose that I withdraw from the contest. I must warn you, Mr. President, not to consider this a personal contest between yourself and the Chief Justice. The President is right, Mr. Hay. You're asking him to proclaim publicly that he was wrong, that he pronounced Burr a traitor, but knowing the accusations would be false did not dare present it in court.  That's impossible, Mr. Hay. The prestige of the presidency forbids it. The prestige of the presidency, in my opinion, is better served by a verdict of guilty, no matter on what charge, than the acquittal. Not at all, Mr. Hay, not at all. Mr. Marshall himself has seen to that if Burr is found innocent, it will be said that the President did his duty, but that the Chief Justice protected the traitor in order to teach his President a lesson in propriety. Well, we're fortunate, Mr. Hay. You've claimed that my intemperance has endangered our cause. Well, Mr. Marshall's intemperance is made as even. We're even, Mr. Hay. Not quite, Mr. President. Mr. Marshall has asked us for evidence in support of the government charges. We do not have it. You'll have all the evidence that's needed, Mr. Hay. I have ordered the Treasury to place all available contingency funds at your disposition. This country will be swept with a fine meshed net. If there's a man alive who can test prior to this case, he will be at your beck and call. No, we will press the treason charges, Mr. Hay. Then sit back and see how the game develops. On May 22, 1807, the grand jury hearing began in the case against Aaron Burr. Only a fraction of the government witnesses had arrived when on June 9, Burr made a bold and unheard of request. Your Honor. Yes, Mr. Burr. With the permission of the court, I should like to submit a motion. You may proceed. In his message to Congress last January, President Jefferson pronounced me guilty. Guilty beyond doubt. He did so on the basis of a letter of mine and certain other papers, which he said he received from General Wilkinson. The court has seen only copies, copies of parts of these documents. I now consider it material to my defense that the originals in their entirety be produced in this court. Therefore, Your Honor, I ask this court to issue a subpoena to the President of the United States, ordering him to appear in this court and to produce the documents in question. You wish us to summon the President in your defense. Is that what you're asking? Yes, Your Honor. The papers which I am requesting will cast serious doubt on the credibility of my accusers and prove my innocence. Your Honor. Yes, Mr. Hay. The prosecution will attempt to procure the papers requested by Mr. Burr, provided the court finds that they're material. Well, how can the court decide whether or not they're material unless we have an opportunity to examine them? Is this court seriously considering Mr. Burr's request to summon the President, Your Honor? I haven't decided, Mr. Hay. Well, I submit that the request is highly disrespectful to the President. End to the President. Your Honor. Yes, Mr. Wickham. We insist that an accused man has the right to obtain all necessary witnesses in his behalf, even if one of the witnesses be the President. Why a denial of his right has not been heard in an American court since the Declaration of Independence? What is at stake? It's not merely due process of law for Colonel Burr. At stake is the right to due process for every citizen of this country for all time to come. We strongly urge our request to be granted. Your Honor, we don't deny a man's right to obtain witnesses in his behalf. However, we do question the authority of this court to issue the writ which has been requested. Why, Mr. Hay? Is there anything in the Constitution that would prevent the federal court from subpoenaing the President? No, Your Honor, not that I know of. Your Honor, the President has undertaken to prejudice the country against my client by declaring that, and I quote him, there can be no doubt of his guilt. He has proclaimed him a traitor and has said on him the dogs of war and the hellhounds of persecution. I need not the labor of the fact that the President's action is unconstitutional. It's plain as day. The President has no right to pronounce on the guilt or innocence of an American citizen that, Your Honor, is the business of the court. But the President has done just that. Now, I ask you, can he who has raised this absurd clamor presume to hold back evidence which is needed for a trial in which the very life of the accused is at stake, perish the force? May I ask what counsel for the defense expects to achieve with this kind of Philippics against the government? Does he hope that the court will accept a political diatribe in lieu of legal argument and that the court will find Mr. Burr innocent for no other reason than to teach the President propriety? What would a foreigner think if he heard in a federal court the President of the United States referred to as a bloodhound hunting down his man in savage anger? And what would he think if this court should tolerate such like this, Your Honor? Gentlemen, you will restrain yourselves, please. I have asked for arguments on the court's authority to issue the writ requested by Colonel Burr. That and only that is the point now before this court. Now, Mr. Wickel, in your opinion, has this court the authority to subpoena the President? Yes, Your Honor. The President is no more than a servant of the people. As such, he is subject to the laws of the land. If the Constitution provides an exemption for him from these laws, I am not aware of it. Mr. Hay? I must agree, Your Honor, the President can be subpoenaed as a witness. However, I urge that the writ not be granted unless it is absolutely necessary. So why is that, Mr. Hay? The documents requested by Mr. Burr of a private nature, they bear on the prestige of the presidency, on the security of the United States, on our relationship to foreign powers, they should not be made public. What Burr demanded specifically was this. He demanded that President Jefferson produce the original of Burr's letter to General Wilkinson, the original of the General's report to the President, the President's answer, and finally, the President's orders to Army and Navy with respect to Burr's arrest. The question now was, could the President, and should he, be forced to appear in court and lay open his records for public inspection? I assure you, I will not lend aid to a motion manifestly designed to show disrespect to the government or to endanger public safety. But how can I refuse to sustain a motion for documents to which the accused is clearly entitled, and which may be material to his defense? I believe the nation would profit from seeing its President on the witness stand. Would you have subpoena, General Washington? I can think of no legal objections to issuing a subpoena to any person, whatever. So long as the case was such as to justify the process, would you have it said that an American court refused a man the use of evidence that might have saved his life? By the same token, Mr. Marshall, what if the President refuses to comply with a subpoena? Would you have it said that the courts of this country have not the power to enforce justice as they see it? I'm directed to appear in court in connection with the trial of Aaron Burr Esquire and there to produce certain letters and papers now in my possession. I don't believe it. You're ensuring me that the judiciary is master of the house. I can't take it in. Mind you, it is the judiciary that keeps harping on independence. It keeps shouting in my ear that the leading principle of a constitution is the independence of the three branches from each other. Now, how in the devil's name do they square that with a demand that I submit to their wishes? Subject to imprisonment. In case of disobedience, subject to imprisonment. Ignorance, by all means, ignorance. That I'm afraid is impossible, Congressman. The Constitution guarantees any prisoner's speedy and public trial and compulsory process for obtaining witnesses in his behalf. It's more than a dead letter. Any person charged with a crime in the courts of the United States has the right before and after indictment to ask the court to compel the appearance in court of his witnesses. On the other hand, Mr. Hay, the Constitution assigns me certain duties that require my ongoing presence in this office. If I exceed to this, the courts of this country will be dragging me from pillar to post. I'll be constantly trudging north to southeast to west. You'll not comply then. I will not comply, no. The court can order your arrest. You know that, I'm sure. I wouldn't advise that. You tell them that, Mr. Hay. Tell Mr. Marshall. No. Don't, Mr. President. Let him give it a try. Let's have a test and see this thing once and for all. Wouldn't enhance anyone's standing in the eyes of the nation. Neither the chief justices nor the presidents. You're not suggesting that we submit. Are you, Mr. Hay? No, Congressman, I'm not. I'm not suggesting anything. Frankly, I wouldn't know what to suggest. Tell the chief justice that he can make public any letter that Burr wants after you, Mr. Hay. Have excised those sections that are not directly material to the purposes of the trial. As for the other documents that he's asked for, there's so much of it that it would amount to laying open the whole of the executive records and this I refuse to do. Tell the chief justice that the Secretary of War will examine them to see if there are any documents that can be turned over to the courts. And that, Mr. Hay, is as far as I will go and that I expect him to remain within the bounds of prudence and good faith. Yes, Mr. President. Oh, and Mr. Hay. Yes, Mr. President. Talk to him gently. Yes, Mr. President. I don't want him riled any more than is absolutely necessary. You don't know. Judge Good. Welcome. Mr. Chief Justice. Come in, gentlemen. Come in. Well, would you do me the honor? Certainly. Mr. Hay. He asked me to assure you of a spirit of conciliation as well as a desire on his part to avoid conflicts of authority between high branches of government. Conflicts which could necessarily discredit all involved, at home and abroad. A spirit of conciliation? Shall we drink to that, gentlemen? The president will comply with a subpoena there? In part. In part? The president feels strongly that his appearance in this court would mean that the executive branch, the sole branch of government, which the Constitution requires always in function could be withdrawn from its station by any coordinate authority. The president would not cooperate in this kind of diminution of his office. I must answer that, despite his high office, the president, as any other man, is accountable to the laws of the Constitution. I don't say this lightly, Mr. Hay. I don't find my duty particularly present, but it is clear. The president suggested that, should that be your answer, you might make plans for his arrest. On the other hand, though he will not appear in person, he is willing to turn over to the court the papers of disaster, relevant to charge the presence he's made. Mr. Hay, these aren't the originals, they're copies. How do we know whether or not they're accurate and complete? The president reserves the privilege of deciding what may be made public. That decision will be made by the court, Mr. Hay. Where are the originals, Mr. Hay? They're in the hands of the attorney general, Mr. Rodney. I understand the president is instructing Mr. Rodney to turn him over to me. To you? Yes, sir. The president directed me to use my own judgment and withholding such information as is not directly material for the purposes of justice. What do you make of this, Mr. Giffel? Being a mere twig in the high branches of government, I should think it a very satisfactory compromise between the president and the chief justice of the United States. Can any compromise be considered satisfactory, Mr. Giffel? If it is a compromise between two gentlemen of equal stature, I should say yes. Consider, Mr. Marshall, you subpoenaed the president. He acknowledged your right to do so. In fact, he has substantially complied with it. But lot fully? Not fully, no. He claimed executive privilege. But remember, General Washington did so before him. As for his personal appearance in court, the president has asked me to convey his hope that the chief justice will allow the question to lie for the president. Before long, legislative means will be supplied for giving individuals the benefit of the testimony of executive functionaries without breaking up the government. Fair enough. He realized, of course, that we'll never see the originals. It's quite possible. May I tell the president the chief justice doubts the wisdom of an attempt to enforce his subpoena? The president will, I presume, resist such an attempt? I believe he would. John Marshall subpoenaed to President Jefferson was never fully complied with, nor actually enforced. The encounter between the two men and between their respective branches of government ended in a stalemate. Yet a subpoena had been issued to an American president. And the legitimacy of the process, the president's answerability to the courts of justice had, in principle, been established. That's the power of the courts to compel the production of evidence in some circumstances, even from the president himself, was foreshadowed. The confrontation between John Marshall and Thomas Jefferson over Aaron Burr was not over, however. It had, in fact, only just begun. A personal testimony of General James Wilkinson and General William Eaton, Aaron Burr on June 23rd, 1807, was indicted for treason. A week later, he was committed to the penitentiary outside Richmond. His fate hinged on two questions of vital importance to the very future of politics and public life in America. How was the crime of treason to be defined? How was it to be proven? There were two conflicting answers, provided by English common law on the one hand and by the Constitution of the United States on the other. Under English law, the crime of treason was rather loosely defined. Moreover, all members of a treasonable assembly, whether they participated in the actual act of treason or not, were equally guilty. Under the Constitution, on the other hand, only an actual act of war against the United States was considered treason. Furthermore, the crime had to be proven by two witnesses to the same act. Aaron Burr, the indictment charged, levied war against the United States on Blenner-Hassett's Island in western most Virginia. There, a body of armed men had assembled in accordance with his plans. Aaron Burr had not himself been physically present on the island at the time. Under the circumstances, was he guilty by association, as stipulated by English law? Or was he innocent because he had not, as the Constitution required, personally levied war? If it was evidence enough to indict Aaron Burr, there would be enough to convict him. Come, come, Mr. District Attorney. Smile. Let's see a little smile of confidence. There's no cause, Mr. President. We barely scraped vine. Barely succeeded in showing probable cause. Secure conviction. We shall have to punish proof. That's going to be extremely difficult. Why? I don't see any difficulty. We can show that he planned the insurrection, set it in motion. That won't quench the case, Congressman. American law sharply limits the crime of treason. According to the Constitution, let me quote, treason shall consist only in levying war against the United States. Note the word only. Or in adhering to their enemies, giving them aid and comfort. Or in adhering to their enemies, giving them aid and comfort, yes. In any case, we shall have to furnish proof to secure a conviction that Burr actually levied war against the United States, committed an overt act of some kind. I should think it would be sufficient, Counselor, to prove an overt act on the part of his men. The men on that island, Blenner has its Burr, will be guilty because of his association with them. In treason, says the law, all who are connected with it are equally guilty. What law, Mr. President? Common law, English common law. I should think you'd know it, Counselor. No, I know it, of course, Mr. President. But is English treason law supreme in America? Or is the Constitution? I'm taking the liberty of doing Counsel's work for him, if you will forgive me. Bring court ruling and export a ballman and Swart out. You recall it, of course. Certainly, it purports to define. It defines what the law is, in this case, Mr. Harry. All who levy war against the United States, says Mr. Marshall. Whether present or absent, all who are in league with the conspiracy, whether at the scene of the assembly or performing some minute and inconsiderable portion of it, 1,000 miles from the scene of the action, all incur equally the sentence of the law. All are equally traitors. That, it seems to me, should do for Mr. Burr. What's that face you're making, Mr. Harry? In my opinion, Mr. President, the Supreme Court ruling, notwithstanding, no American government should demand the application of English trees and law to the United States, least of all this government, which stands committed explicitly to the protection of the individual against tyranny in every form. No government, Mr. Hage, can afford to protect the rights of the individual to the point of sacrificing the safety and welfare of the whole. The founding fathers of Harvard English trees and law wish no part of it. The language of the Constitution makes that as plain as day. Yes, but the founding fathers devised the Constitution first and above all for the purposes of safeguarding the nation, of forming a more perfect union, of providing a common defense of establishing domestic tranquility, which is precisely our objective. It has been said that English law with respect to treason has stained English history with blood and filled English valleys with innocent graves. Innocent graves? I think you're forgetting, Mr. Hage, that we arrested Burr and his men arms in hand, arms in hand. And that if we had failed, if their conspiracy had succeeded, the union would have been destroyed. Now, you may question my loyalty to the principle of the Constitution, if you will, sir, but not my determination to fulfill the obligations of my office. My personal inclination matters not at all, sir. Not at all. The people expect that I will protect their country and its government, and I will not fail them. I understand, Mr. President. It's not 10 days since the ship of ours that Chesapeake was fired upon and destroyed by a British man of war in peacetime, on the specious protects of capturing deserters. And this was done with no fear of reprisal. I say it again, Mr. Hage, we must furnish proof that America is willing and able to defend herself against all enemies, internal and external, by whatever means necessary for her survival. Marshall has kindly furnished us with the means by which we can hang Aaron Burr. I desire that you take full advantage of them. With the recent ruling in the case of Bowman and Swarthout, the Supreme Court itself appeared to have placed a noose around Aaron Burr's neck. Eric Bowman and Samuel Swarthout had carried a letter from Burr to General Wilkinson, the very letter in which Burr outlined his plans to attack Mexico. Wilkinson had arrested the two men, and had sent them to Washington, there to be tried for treason. Bowman and Swarthout, upon their arrival, had appealed to the Supreme Court. They had committed no crime, they claimed, in the District of Columbia. They could therefore not be held there for trial. With this, the Supreme Court had agreed, and it had ordered that the two men be set free. But then John Marshall had gone on to define, as a matter of principle, what he thought the crime of treason consisted of. In so doing, he had provided precisely the argument with which the prosecution was now trying to clinch the case against Aaron Burr himself. Aaron Burr was not physically present on the island when his men assembled there, and that is admitted. But his actual presence is not necessary to prove his guilt. Though not physically present, Burr was legally present, present by construction of the law. That, your honor, was the argument of the Supreme Court in the case of Bowman and Swarthout. If I may quote it, if war be actually levied, that is, if men assemble for the purpose of effecting by force a reasonable design, all those who perform any part, however minute, however remote from the scene of action, and are actually lead in the conspiracy, are to be considered as traitors. Your honor, the government intends to show that men did in fact assemble for the purpose of effecting by force a reasonable design on Blenner-Hassett's island, and that Aaron Burr performed a part in the assembly by planning it and setting it in motion. If this be proved to the satisfaction of the court, then, on authority of the Supreme Court, it must follow that Aaron Burr is guilty of lebbing war at Blenner-Hassett's island, as charged by the indictment. The government now calls its first witness, General William Eaton. I'll take your left hand on the Bible, raise your right hand. The solemn makes way to tell the truth, the whole truth, and nothing but the truth, so help you God. I do so swear. Please be seated. General Eaton, you had several conversations with the accused last summer. What was the substance of these conversations? You described to me a plan for starting a revolution in the territory's west of the Allegheny Mountains. What was this plan, General? Earl Burr said that he was going to set up an independent empire in those territories. New Orleans was to be the capital. He himself would be the emperor or chief. Where was he going to get the army to carry out this plan? He said that thousands of men from Kentucky and Tennessee would join him, and that the army of the United States would go along with this plan. Did you ask him the legality of all this? Yes, sir, I did. And what was his answer? He said that revolution was the right of the people, inherent in the Constitution. General Eaton, you do understand that you're under oath to tell the truth. Yes, Your Honor. And all this the accused told you himself, General? Yes, sir. It was a pretty hot conversation. Colonel Burr was angry at the federal government. He said that it had no character, it had no energy, and it had no gratitude. And what did you answer him? On that I agreed with him. You did? Yes, sir. The government owed me money for a long time, and it wouldn't pay up. All right, General. Now, what can you tell us about the events on Glenner-Hassett Island, about the men who assembled there, armed with nothing, sir? Well, about their plans and intentions. Nothing, sir? Nothing at all. No, sir. Thank you, General Eaton. Your witness, Mr. Wickham.  Does it still owe you this money? Do I have to answer that question? What is the purpose of the question, Mr. Burr? I wish to show that this witness is biased against me. You will answer the question, General. Well, then, the answer is no. The debt has been paid off. When was it paid? About four months ago. After I was arrested. Yes. And after you told the government about the conversation that supposedly took place between you and me, it did take place. Was the debt settled after you told the government about the conversation? I guess so. Yes or no? Yes. And how much money did the government give you to settle this debt? I don't remember exactly. Well, inexactly then. About $10,000. How much? $10,000. It is known that John Marshall, just as the trial of Aaron Burr began, had doubts about the Supreme Court's ruling in the Bowman and Swarthout case, and that he turned for advice to his colleagues on that court. One of them was Justice Bushrod Washington, a close friend and fellow Virginian. In your opinion, Mr. Washington, does the ruling apply to this case? Prosecution, I'm told, assumes as much. It is the law as laid down by the Supreme Court. Should it be revised? Revised? Why? The Constitution says the treason is the levying of war. Now, what's the meaning of that term? How broadly should we interpret it? Isn't it enough that men assemble with reasonable intentions? Or must those intentions be indicated by the use of force, an open deed? And are only those guilty who actually perpetrate the deed? Are those guilty too who merely associated with the perpetrators? The interpretation we've laid down, Mr. Marshall, is so fine a net as to permit only the smallest fish to escape. It smacks of English treason law for certain. Devised to permit English courts to chop up enough heads to glut the vengeance of the crown, yes. Exactly what is the point, sir? Did I remind you, Mr. Griffin? There isn't a juryman who hasn't admitted the prejudice of some kind against Colonel Burr. Is that true? It is. No unbiased jury was to be found. The president saw to that, and the press. Oh, Burr meant to attack Mexico. We have that in his own writing. As to his intentions to divide the union, we're asked to believe generals Wilkinson and Eaton. Who would believe he had done so in the interest of justice? Colonel Burr and I were having dinner together, and we were talking about the weakness and imbecility of the federal government. At one point, he said to me that the union of the states could not possibly last. It would break down naturally in four or five years. Did you say anything about his ideas? I said, God forbid. And what was Mr. Burr's response? He kept talking. He said that the federal government was so inept that he himself, with 200 good men, could drive the president and the Congress into the Potomac River. And with 400 or 500 men, he could capture New York City. Your witness, Mr. Burr. General Morgan, do you remember my tone of voice when I was making those comments? I believe I do. How would you describe it? Light, bantering. Did I sound as if I were joking about all this, or did I sound serious?  So on the island that night, Mr. Blenner has to come home. Seems scared. Someone said something to him, and he told him, don't bother me. I've got enough troubles already. After that, the boats arrived. How many boats were there? Four. How many men were on the boats? Approximately. About 30? They have guns with them. Some of them did. Did you ever hear them talk about fighting a war? Yes, sir. Holmes said he was going to sail those boats down Mississippi and storm New Orleans. Now, what happened when they heard that the militia might be coming to arrest them? They got mightily worried and excited. Loaded up the boats again, and Mr. Blenner Hassett and all of them took off liquidy split. Thank you, Mr. Taylor. Mr. Byrne? You said that one of the men talked about attacking New Orleans. Was he the only one of these men who told you where they were headed? Oh, no, sir. Another man told me he was going to find a silver mine. And another one said he was off to settle some land in Texas. Uh-huh. And why did they run away when they heard the militia was coming? Most of them seemed afraid they was going to be attacked. And you're quite sure, Mr. Albright, these men had at least five rifles and four or five pairs of pistols in their possession? I'm positive. Did you ever see them use these pistols? Yes, sir. When the government sent a man to arrest them, a man by the name of Tupper, he laid his hands on Blenner Hassett, and he said, your body is in my hands in the name of the Commonwealth. Some such words he mentioned. They had seven or eight muskets leveled at him. The men pointed muskets as an officer come to arrest them. Yes, sir. One of the men that was holding a musket said he was his mind to shoot Tupper as not. And then Tupper said, gentlemen, I hope you will not do the like. Or did Tupper arrest them then? No, sir. He didn't dare. Thank you, Mr. Albright. I've finished with this witness, Your Honor. Counsel for the defense, wish to cross-examine? No, Your Honor. May I ask, Your Honor, if we are going to hear further evidence with respect to an overt act of war? Mr. Hay? No, sir. Mr. Albright was our last witness with respect to that. Then, Your Honor, we move that no further testimony be admitted, which bears on Colonel Burr's alleged intention. It has been charged that Colonel Burr levied war against the United States on Brenner-Hasset Island. The prosecution has failed to establish on the testimony of two witnesses as required by the Constitution that war was, in fact, levied by him at Brenner-Hasset Island or anywhere else for that matter. Testimony as to his intentions to levy war, therefore, must be irrelevant. We move that it be barred as inadmissible. Objection, Your Honor. An assembly of our men took place for a reasonable purpose. That has been shown. It has, therefore, been established that war was levied at Brenner-Hasset Island. Now, as to Mr. Burr's part of it. Arrive your horses, Mr. Hay, for just a moment. In your opinion, can war be levied without the use of force and open deed, without the occurrence of actual violence? Your Honor, we maintain that war, and that's the quintessential meaning of the word, is an appeal from reason to the sword. Intentions to go to war may be proved by words, but the actual going to war must be proved by the open deed. Council for the defense implies that we must wait for bloodshed and murder before we may justifiably speak of treason. Perish the thought. I ask this court, if men were to assemble with a treasonable design upon the lives of the president and the members of his cabinet, must we wait for an open deed? Must we wait until our heads of government are slain before we may say that war is being levied against the United States? No, Your Honor. Treason is committed. The very instant our men assemble with a treasonable design, and our men did assemble with a treasonable design on Brenner-Hasset Island by Aaron Burr's orders and under his command. What are they? Even if the men on Brenner-Hasset Island levied war, and we are far from admitting that, Colonel Burr did not levied war. Then under the constitution, Your Honor, only the actual levying of war is treason. Your Honor, if the men on Brenner-Hasset Island levied war and we maintain they did, Aaron Burr is guilty. We again refer this court to the Supreme Court decision in the case of Bowman and Swarthout. It states plainly what the law is in this case. All who levied war against the United States, whether present or absent, all who are in league with the conspiracy, whether on the spot of the assembly or performing some minute and inconsiderable part into the 1,000 miles from the scene of the action, they all incur equally the sentence of the law. They are all equally traitors. Anger! Anger! Anger! Anger! Anger! Anger! Anger! Anger! The mind is troubled like a fountain stirred. I, myself, see not the bottom of it. Hello, Washington. Your advice. If you'll forgive the impropriety of asking your opinion on the case not before you. Don't apologize. Old men like to give advice. As solace for no longer being able to set bad examples. If you stand on English treason law, if you define the levying of war as broadly as an English court would in this case and rule that anyone connected with it, whether at the site or not, is equally guilty, then Burr is a dead man. If you stand on the Constitution, if you define the levying of war as requiring an act of violence and rule that treason consists only in the levying of war, then Burr undoubtedly must be set free. All depends then on how you interpret the law. You ask my advice. I believe that when an individual comes in conflict with his government, we must always, and particularly when there's room for doubt, provide him with the fullest protection available under the law. For if the law is not his defense, what defense has he? What defense has he? From the very agencies devised for his protection and welfare combined to crush him. The army, the navy, the treasury, the body politic. I looked up and there was none to help. He sustained the motion, decided with the defense, ruled all further evidence with respect to Burr's scheming and plotting in admission. I'll see if why. Burr, Mr. Marshall said, was charged with levying war. To levie war, he went on. He meant the actual use of force. Violence, an appeal to the sword. To convict Burr Treason, therefore, as charged by the indictment. It was necessary to prove an overt act of war, an open need on his part, for only the actual levying of war under the Constitution was treason. In other words, he could not be convicted simply because others, those with whom he was associated, levied war. That's not how he ruled in Baldwin and Swartos. Maintained we misunderstood his ruling. Misinterpreted. Misinterpreted it. Mr. Marshall took great pains at explaining it. He said that it meant that to be guilty of treason, a man need not be present at the scene of action. But he had to perform a part which made possible an overt act of war. An open deed, actual violence. Just like a commissary of purchase or a recruiting officer. Without being on the battlefield, made it possible for an army to engage the enemy. Well, isn't that precisely the part which Burr performed? He recruited men for the purposes of levying war. That's a fact. Quite possibly, Congressman. However, the indictment didn't charge Burr with recruiting men for the purpose of levying war. It charged him with levying war. And Mr. Marshall said that the indictment must be proven as late. Angels of darkness. The law is invoked not to crush the traitor, but to protect him. I can't take it in. Well, bring the story to its sorted end. Mr. Marshall concluded by saying that there were no witnesses to an overt act on the part of Burr. It couldn't possibly be said that he levied war upon the jury acquittal. The jury didn't acquit Irwin Burr, Mr. Marshall did. Once again, Mr. President, the judiciary sets itself up against the will of the people, against their elected representatives, as they have since the day on which we took office. Why? Dammit, why did we permit it to go on? How do you propose ending it, Mr. Giles? The remedy I suggest, an amendment to the Constitution. All government officials must stand election and re-election. Why not the judiciary? If the president fails in his duty, or a member of the Congress, the day is never far distant when the people will remove him. Why should the judiciary be impervious to this censure? From oversight on part of the founding fathers, let's correct it. I should like Mr. Marshall removed. That would mean more to me than the conviction of Irwin Burr. You do hate the man. I warned you it would spoil our efforts, and it has. Hate? I don't hate John Marshall. It's his principles I cannot abide. At heart, he's more of an Englishman than American institutions matter to him. The law, not people. They're welfare. Oh, I don't mean to say that obedience to the law to the principles of the Constitution is not a high duty it is, but it isn't the highest. Self-preservation, the laws of necessity. After the amendment, Mr. President, now, the people will give it to us. They're angry enough about leaving. It's not justified that four-choice spirits are tonight to be Marshall for execution by the hangman. It's pronounced against them by the unanimous voice of every honest man in the community. Times for which they suffer are thus stated in the record. First, Chief Justice Marshall is in open court. Majesty Burr. You're taking this calmly. You're mistaken, my friend. No man looks on calmly when he's hanged in effigy in the streets of his hometown. But it was to be expected. Judge Griffin warned me. Country will question your motives, he said. Well, there's the proof of it. I suspect he himself has never ceased questioning them. Tell me, Mr. Marshall, would your ruling have been the same if the accuser's name had not been Thomas Jefferson? What you're asking is, do I deserve this because I set myself up against the president for improper reasons? That is the way you put it, isn't it? Improper reasons? The answer is no. The president violated the Constitution, Mr. Griffin, not I. He violated it when he pronounced Burr guilty before he'd been tried. When he so prejudiced the public mind, I could not find an unbiased jury. The president violated the Constitution. When I extended to the accused the full protection of the law, I sustained it. And there is nothing improper in that. You sustained it, yes. After chastising the president, after ordering him into court like a common plow jogger, after revising a Supreme Court decision, which had you stood by it, would have led to a verdict of guilty. I was partial, yes. Not toward Burr, Mr. Griffin. Not toward Burr. We fought a war for the rights of the individual. Among them, the right to due process of law. If we failed to protect them now, to protect the Constitution in which they were enshrined, that long and costly war would have been fought in vain. We shed precious blood. I saw hardship. I saw men suffer.  The ruling passion, Mr. Marshall. Be at what it will. The ruling passion conquers reason still. True. But then, what are the standards of our profession? Genius, subtlety, knowledge, our way with words? More is required, Mr. Griffin. When the case demands it, we'll encourage our require to stand against doubt and suspicion, both within and without, against the anger of friends and neighbors in defense of what we perceive to be our duty under the Constitution. No man undertakes such a defense lightly. No man have you the choice to drink the bitter cup to the bottom. By demanding that the principles of the Constitution be strictly observed, John Marshall stepped between Aaron Burr and death. Possibly a guilty man escaped. But it is an incontrovertible fact that the door was closed forever on political abuse of the treason charge in America. A great issue was settled. In prosecuting Burr, Thomas Jefferson first and foremost sought to secure the nation from internal enemies. In extending to the accused the fullest protection of the law, John Marshall first and foremost sought to forge the judicial process into a means of safeguarding the individual from oppression by his government. It can be said that John Marshall succeeded. The law remained master, not the will of the government. This is the meaning of the Burr trial. This is its significance in American history.