In ordinary circumstances, newspaper coverage of the early federal courts, even the Supreme Court, was infrequent. Although they paid much attention to the operations of the federal government, newspapers focused almost exclusively on proceedings in Congress and communications from the executive departments. Whole terms might pass without so much as a mention of a federal court case. This is understandable, for most legal cases are private civil suits of no interest to anyone but the parties themselves. Not surprisingly, the cases that did attract popular interest were usually criminal, such as robbing the mail and counterfeiting notes of the Bank of the United States. These were the most common federal crimes.
Aaron Burr’s case was of a different order of magnitude, even for a criminal case. Treason was the highest crime of all. The revelations of the conspiracy captivated the American public’s attention from late 1806 through 1807. Newspaper publishers immediately recognized an opportunity to boost circulation. They eagerly tried to gratify the public’s interest by filling their columns with every known fact or rumor relating to Burr’s enterprise and with detailed accounts of the ensuing legal proceedings.
Because the trial took place in the summer, when Congress and the state legislatures were not in session, newspapers had ample space to print not only the formal court proceedings but also editorials, letters to the editor, and other commentaries reflecting the paper’s political point of view. Three Richmond newspapers fully reported the case, beginning with the preliminary examination in the spring and continuing through its final disposition six months later: the Enquirer, edited by Thomas Ritchie; the Virginia Argus, edited by Samuel Pleasants; and the Virginia Gazette, edited by Augustine Davis. The Enquirer and Virginia Argus were supporters of the Jefferson administration, while the Virginia Gazette was Federalist in its politics. The papers hired reporters to take stenographic notes of the lawyers’ arguments and judge’s opinions in an attempt to reproduce them verbatim. After initial publication in the newspapers, the trial proceedings were published separately in book form.
Newspaper articles
“Communication”—Virginia Argus, April 7, 1807
The writer of this “communication” was most likely Samuel Pleasants, editor of the Virginia Argus. This piece was the first public reaction to the celebrated dinner hosted by John Wickham
It is reported, and we are sorry to say, that the fact appears indisputable, that Col. Aaron Burr and the Chief Justice of the U. States, dined together at Mr. Wickham’s, since his examination, and since his honor had himself solemnly decided that there were probable ground to believe him guilty of a high misdemeanor against the U. S. We acknowledge that the rites of hospitality ought not to be refused to this unfortunate gentleman by those who believe him innocent; but confess our astonishment that men, whose intellects are so penetrating as those of Mr. Wickham and Mr. Marshall, did not perceive the extreme indelicacy and impropriety of such respect being paid him by the Judge, who is to sit hereafter on his trial, and who, by his own opinion officially pronounced, had affixed a stigma on his character, which can only be wiped off by his future acquittal.
Editorial—United States Gazette (Philadelphia), reprinted in the Virginia Gazette, April 29, 1807
Like his fellow journalists, Virginia Gazette editor Augustine Davis filled his columns with stories and articles clipped from other newspapers throughout the country and abroad. To counter Republican criticism of Marshall’s attendance at Wickham’s dinner, Davis inserted this piece from a Federalist newspaper in Philadelphia.
The democratic papers of Richmond have commenced a most furious attack upon the character of Chief Justice Marshall. They say that his conduct has been “grossly indecent,” that it is “a disgrace to the country” . . . that it has “excited sentiments of lively indignation,” &c. &c. It will immediately be asked what has the Chief Justice done to merit their accusations? Why, forsooth, he dined with a gentleman in Richmond, and col. Burr was at the table!!! and the Chief Justice neither kicked Col. Burr out of doors, nor ran away himself; but sat and ate his dinner as deliberately, and to all appearance with as little concern as though perfectly unconscious that the presence of Col. Burr could either contaminate his principles, or blast his reputation! This is the head and front of his offending.
“Communication”—Virginia Argus, June 17, 1807
This satirical piece nicely captures the comic opera aspect of the Burr trial embodied in two of its most colorful characters: General James Wilkinson, the prosecution’s chief witness, and Luther Martin, Burr’s lead lawyer
DRAMATIC INTELLIGENCE
The Drama under rehearsal at the Richmond Theatre, first reported to be a Farce, is now said to be of the new species of Melo Drama.
The arrival of Mr. Wilkinson, a performer of long standing, has excited much curiosity–the managers are sure of full houses from some time to come.
The engagement of Mr. Martin, from the Theatre at Baltimore, appears to have been made upon a supposition that the taste of the Richmond audience was for Low Comedy–from the reception of this actor, it appears that there was some mistake in this affair.
Letter from John Brockenbrough, July 11, 1807—Virginia Gazette, July 15, 1807
Brockenbrough, one of the grand jurors, wrote in response to a published piece by Munford Beverley, also a member of the grand jury. Beverley had stated that seven jurors, including himself and Brockenbrough, had voted to present James Wilkinson on three charges: high treason, misprision (concealment) of treason, and violating the Constitution.
In a controversy between General Wilkinson or his friends and Mr. Beverley, I can certainly feel no disposition to interfere. But as Mr. Beverley has chosen, in his statement of the enquiry into General Wilkinson’s conduct by the Grand Jury, to introduce my name into the newspapers, I deem it a duty to myself to relate briefly the facts of the case as far as they concern me. The very strange misconception involved in this affair I cannot comprehend, and I must therefore leave it to be explained by others.
Whatever may be my impressions respecting General Wilkinson, I did not vote for presenting him on a charge of High Treason, for no vote on that question was taken by the Grand Jury, to my knowledge.
On the motion to present him for misprision of treason, I was of opinion, after the discussion of the subject, that the evidence did not warrant the presentment, and consequently I voted against it.
For his infraction of the Constitution I voted to present him, because I thought the offence came completely within the jurisdiction of the Court of this District.
Editorial—United States Gazette (Philadelphia), reprinted in the Virginia Gazette, September 30, 1807
This editorial from a Federalist newspaper responds to attacks on Marshall and the judiciary by censuring the Jefferson administration for disregarding the rights of the people in putting down the Burr conspiracy.
The prevailing fashion in this country is now to run down the Judicial authority and attempt to merge it in that of the executive. If the executive declares that a man is guilty of treason, and afterwards puts him upon his trial before a court and jury, the democrats will not allow that court and jury to do any thing more or less than to confirm the sentence of the executive and execute the offender. This they consider as maintaining the rights of the people.
While the democratic faction are thus feelingly alive to what they affect to consider as usurpation on the part of the Judiciary, they are perfectly unconcerned at the most enormous and unexampled usurpations on the part of the executive. History will hardly furnish an example of such oppressive tyranny as has been practised under the administration of Mr. Jefferson towards a number of men who were supposed to be concerned in the schemes of Col. Burr. In England damages have been given to the amount of ten thousand pounds for arresting and detaining a man for a few hours, under a general warrant, issuing from the cabinet of the king. In the United States, and under the administration of Mr. Jefferson, several men have been arrested without any warrant at all; hurried away from their friends under circumstances of the aggravated cruelty and barbarity; forced on board of crazy vessels, and in the winter season transported to the distance of several thousand miles; and after being landed, sent under military escort from one post to another to avoid the process of the laws of the country; all this in a time of profound tranquillity–and for what? Why, for nothing at all, except for not having the good fortune to be agreeable to Mr. Jefferson and his officers; for upon examination it was found that against some of them the government had not even an accusation to bring, and against none of them were they able to substantiate any charge whatever.
Yet such monstrous usurpation, so destructive of every principle of civil liberty, is not thought worthy of even a comment by those who profess to be the exclusive champions of the rights and liberties of the people.
Editorial—Virginia Argus, December 4, 1807
In the aftermath of Burr’s acquittal, Republican newspapers bitterly denounced Chief Justice Marshall, accusing him of manipulating and twisting the law to allow Burr to escape on a technicality. Their displeasure prompted proposals, such as that advocated here, to amend the Constitution by providing for the removal of federal judges at the request of a majority of both houses of Congress. The editorial echoes Jefferson’s remark, following the failure to convict Justice Samuel Chase in 1805, that impeachment as a means of removing bad judges was a “farce.” Despite the furor over the Burr trial, Congress did not act upon proposals to make easier the removal of federal judges.
As the General Assembly of Virginia will commence their session on Monday next, we take the liberty of recommending to their particular attention the important subject of the Judiciary of the United States.
The extraordinary proceedings in the case of AARON BURR . . . clearly shew that an independent Judiciary (that is to say, a Judiciary not controled by the laws, and above the fear of violating them) is a very pernicious thing. That the federal Judiciary is, in this sense of the word, independent, is, perfectly certain; since no power at present exists by which it is probable a Judge could be punished even for palpable treachery to his country and wilful perversion of the law; a trial before the supreme court of impeachments being only a solemn and expensive farce.
Every friend of a free government must wish the members of the Judiciary to be independent of all improper influence; to be free from the smallest suspicion of being governed by fear, favor, or affection; and to enjoy salaries sufficient to set them far above the temptation of bribery or corruption.
But this desirable independence of the Judges is very different from that which places them above the law; enabling them not only to legislate by their decisions, but to vary from and dispense with those decisions, whenever it suits their purposes. It is evident that in delivering his opinions in the case of Burr, Judge Marshall must have known that he possessed the latter of these two species of independence; that he felt himself to be legislating on the subject of treason, and even dispensing with the law which the supreme court of the United States had previously declared on the same subject; that as he looked down with contempt on the opinions of the people, so also he was conscious of being above the reach of punishment.
But such a state of things ought not to be tolerated in a free country. No person should be above the law;–and, especially those who interpret and apply it to the cases of others should be compelled to obey it strictly themselves. True it is that a Judge ought not to be punished for an error of opinion, where that error is not produced by an improper biass. But where the opinions of a Judge are found to be continually or systematically hostile to the liberties of the people, or injurious to their safety, even though no proof of corrupt motives can be exhibited against him, he ought to be removed from office.
Offices ought not to be considered as the property of individuals, but of the public; and those who fill them are only trustees for the general good. They do not hold their honors and salaries for their own sakes; that they may live at ease and fatten on the treasury; but merely for the purpose of performing useful and laborious duties, for which they are entitled to, and ought to receive, an adequate compensation. A removal from office ought not therefore to be considered as a punishment for a crime; neither ought it to take place in those cases only where a crime has been committed.
A want of skill and knowledge in the law, a defect of understanding, or the possessing, and acting under the guidance of erroneous and dangerous principles, are all good and sufficient reasons for removing a Judge from office–If the point is frequently otherwise considered, it must arise from the mistaken impressions generally entertained concerning the independence of the Judiciary, or from the idea that the office is the property of the Judge who holds it, and that he ought not to be deprived of his property without conviction of a crime; opinions which are certainly contrary to those laid down in the Bill of Rights of Virginia as the foundation of all good government.
Yet, for none of these glaring defects, can a Judge be removed from office, as the constitution of the United States now stands. It is time, therefore, that an amendment should be proposed authorising and requiring the President to remove any Judge from office at the request of a majority of both houses of Congress. Such an amendment could not have the effect of producing any improper influence on the minds of the Judges, or of diminishing their legitimate and useful independence. A good Judge would never be prevented from doing justice by the fear of losing his place, and a bad one ought to be subject to the wholesome concord of his country. The opinion of the majority of both houses of Congress would generally be on the side of justice; and, if it sometimes erred, it is better in a free country that the will of the people should prevail, (the government being instituted for them and to be administered according to their wishes) rather than the will of a few persons, whose interest (being in conflict with that of the great body of the community,) will much oftener lead them to do wrong.
All human institutions are imperfect; but the proposed amendment, though it would not be altogether free from evil, would, most assuredly, be a great and important improvement to the constitution of the United States.
We hope, therefore, that the General Assembly of Virginia, always ardent and active in the cause of republicanism, will not be hindmost on this occasion; but will take up the subject early in the session, and propose the amendment as speedily as possible.