Legal Questions Before the Federal Court
What constitutes “levying war” under the Constitution’s definition of treason?

A warlike gathering or assemblage of men having an appearance of force and in a situation to practice hostility, said Chief Justice Marshall in his opinion of August 31, 1807.

This meaning of levying war, said Marshall, was based on a multitude of English cases and authorities and was confirmed by the few American cases of treason. In Ex parte Bollman and Swartwout, the Chief Justice had said that it was not the court’s intention “to say that no individual can be guilty” of treason “who has not appeared in arms against his country.” Marshall explained that the Bollman opinion, properly understood, did not overthrow the authority of earlier settled cases and declared that any assemblage with a treasonable design was a levying of war. The Bollman opinion, he explained, did not reject the idea of force as an essential element in levying war. If actual fighting was not required, however, then there had to be a warlike appearance, an assemblage in military array in such manner as to indicate a clear plan to use force.

After elaborately defining the term “levying war,” Marshall cautiously refrained from deciding whether the assemblage on Blennerhassett’s Island amounted to an overt act of treason, though he strongly implied that it did not.

Could a subpoena duces tecum issue to the President of the United States?

Yes, said Chief Justice Marshall, in his opinion of June 13, 1807. U.S. Attorney Hay acknowledged that a general subpoena ordering a witness to testify might issue to the President, but he insisted that the executive was exempt from a subpoena duces tecum ordering him to produce certain specified documents. Marshall responded by first considering why the President was not exempt from a general subpoena. A President, he said, was not a king, but a citizen like everyone else and therefore subject to the law and the Constitution. In terms of this constitutional obligation, Marshall saw no material distinction between a general subpoena and a subpoena duces tecum.

The President could not claim exemption on the basis of the pressing demands of his office, since these did not require all of his time. Nor could the President cite national security as grounds to withhold documents that might be material to the accused. If documents contained information too sensitive for public disclosure, the court would take care to keep them confidential. In reply to the argument that the motion for a subpoena implied “disrespect” to the President, Marshall declared that the court felt “many, perhaps peculiar motives, for manifesting as guarded a respect for the chief magistrate of the union as is compatible with its official duties.”Jefferson, citing the principle of separation of powers, did not concede that the federal judiciary could compel the federal executive to answer legal process. If his testimony were needed to aid a defendant, he would give it voluntarily. Jefferson also claimed “executive privilege” in deciding what documents, and which part of them, might satisfy the demands of justice.

Did a person accused of a crime have a right before, as well as after, indictment to request the court to compel the attendance of his witnesses?

Yes, said Chief Justice Marshall, in his opinion of June 13, 1807.

While the grand jury was meeting, Burr requested the court to issue a subpoena to President Jefferson. The prosecution objected that until an indictment was found against Burr, he was not entitled to have the court issue subpoenas. Marshall replied that the “genius and character of our laws and usages” supported a “fair and impartial trial” and consequently favored an expansive view of the rights of the accused. He gave particular emphasis to the Sixth Amendment, which gave to a person accused of a crime “a right to a speedy and public trial, and to compulsory process for obtaining witnesses in his favor.” Courts, said Marshall, should regard this right as “sacred” and therefore read the amendment to allow a party to request witnesses before as well as after indictment.

Can a person who organized or instigated the gathering of an armed force be considered as legally or constructively present at the commission of the treasonable act if that person did not participate in the armed assembly?

No, said Marshall. Even in English law, which extended the doctrine of constructive treason to many cases, only persons close enough to the scene to provide direct and immediate assistance in levying war could be considered as constructively present.

Burr’s situation, the Chief Justice explained, was like that of an “accessory,” or subordinate accomplice, in a common crime. In such a crime, an accessory was one who was not present at the commission of the offense but was nevertheless guilty as a participant by organizing or instigating it. In the high crime of treason, however, there was a stricter standard that recognized no distinction between a “principal” (the chief actor or perpetrator) and accessory. To be implicated in treason, Burr had to be considered as a principal, charged with committing a specific overt act. In his case, the overt act cited in the indictment was not levying war on the island but “procuring”—organizing, advising, or instigating—the armed assemblage. This meant that Burr could not be considered as being legally present on Blennerhassett’s Island, like an accessory in a common crime.

Whether procuring the armed force could be considered under the Constitution as treason in levying war was a matter of great doubt. In any event, the act of procuring would have to be proved by two witnesses.

Who is a competent juror?

A person of open mind who has not previously formed an opinion of guilt or innocence, said Chief Justice Marshall in his opinion of August 11, 1807.

During jury selection, Burr’s lawyers challenged a number of prospective jurors for “cause,” that is for holding opinions hostile to the defendant. U.S. Attorney Hay complained that the questions posed by Burr’s lawyers were too general and might prevent the selection of a jury.

Marshall stated that the common law required and the Constitution secured the right to an impartial jury, composed of persons who would fairly hear the evidence and decide according to that evidence. Those who had already formed an opinion of the accused’s guilt were disqualified, as were those who had formed an opinion not on the whole case but on a point so essential that it would have an unfair influence upon the verdict.

What had the federal courts decided in earlier cases of treason?

Although the lawyers and judges had plenty of English cases to consult about the law of treason, U.S. federal courts had decided only a few treason cases before United States v. Burr. Two of these grew out of the Whiskey Rebellion of 1794. Another case arose from resistance to the direct tax enacted by Congress in 1798. The Supreme Court’s only consideration of treason had come in the habeas corpus hearing on behalf of Burr’s confederates, Bollman and Swartwout. Lawyers cited all these cases, as did Marshall in his principal opinion of August 31.

The Whiskey Rebellion Cases—A tax on whiskey distilleries provoked armed resistance in western Pennsylvania, which the Washington administration suppressed with federal troops. The government entered treason prosecutions against a number of the so-called whiskey rebels in the U.S. Circuit Court for the District of Pennsylvania, sitting at Philadelphia in the spring of 1795. Two of the trials ended in the convictions of Philip Vigol and John Mitchell, both of whom were later pardoned. In both cases Justice William Paterson delivered jury charges that expounded the meaning of “levying war.” Marshall quoted Paterson’s charges to support his argument that United States judges went beyond English judges in requiring “the actual exercise of force, the actual employment of some degree of violence,” to constitute a levying of war.

United States v. Fries—In 1798, Congress passed a law levying a direct tax on houses, a tax that was forcibly resisted by German farmers in northeastern Pennsylvania. In 1799, the federal government prosecuted John Fries, a leader of the resistance, in the U.S. Circuit Court at Philadelphia. In the first trial of Fries, Justice James Iredell delivered a grand jury charge and Judge Richard Peters delivered a jury charge stating that an intention to prevent the execution of a federal law and any forcible opposition designed to carry that intention into effect amounted to a levying of war against the United States. Fries was convicted, but his lawyer successfully moved for a new trial. In the second trial Justice Samuel Chase stated in his jury charge that a conspiracy to oppose the execution of a law was a misdemeanor, but a forcible carrying into effect of that intention was levying war. He further stated that any force connected with that intention constituted the crime of levying war. Fries was convicted but was later pardoned by President Adams. Chief Justice Marshall quoted these charges, most extensively that of Justice Chase, to support his contention that United States law required force as an essential element of levying war.

Ex parte Bollman and Swartwout—The Supreme Court heard this case in the winter of 1807, just before the proceedings against Burr commenced. Chief Justice Marshall ordered the release of Bollman and Swartwout, two of Burr’s associates, on the ground that there was no probable cause to charge them with treason. In his opinion Marshall remarked:

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 contrary, 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 must be an actual assembling of men for the treasonable purpose, to constitute a levying of war.

This passage proved troublesome to Marshall in Burr’s case, the more so because these were his own words. The prosecution frequently quoted this passage in support of its arguments that Burr should be considered as constructively present on Blennerhassett’s Island and that force was not an essential ingredient in the act of levying war. The defense, on the other hand, tended to ignore this statement or dismiss it as “obiter dictum,” that is, something not essential to or directly related to the substance of the decision.

In his Burr case opinion of August 31, Marshall took great pains to explain and clarify his earlier opinion regarding Bollman and Swartwout. That opinion, he said, did not embrace the case of one who counseled or advised treason but performed no act in carrying out the war. Nor did it overturn previously settled federal law that required some degree of force to constitute an act of levying war.