By Peter Charles Hoffer, University Press of Kansas, 212 pages

What do Ernesto Miranda, Clarence Gideon and Aaron Burr have in common? They were all put on trial and the resulting case law helped define our freedoms. Aaron Burr is commonly remembered today for killing Alexander Hamilton in a duel, but what landed him in court was an accusation of treason. This story has now been competently told in Peter Charles Hoffer’s “The Treason Trials of Aaron Burr.”

Besides Burr, “Treason Trials” also presents two other famous Americans in an unusual light. If Thomas Jefferson conjures up visions of Mt. Rushmore, this book portrays him as a politician more obsessed with persecuting his enemies than Richard Nixon. Chief Justice John Marshall is also seen in human terms; he didn’t like Jefferson and politics and the need to compromise could sway his decisions.

Burr was an unsuccessful adventurer. A Revolutionary War colonel, he was elected to the New York State Assembly and was later a U.S. Senator. He was vice-president under Jefferson for one term. However, the duel with Hamilton was a turning point. It made him unwelcome in New York and he eventually headed out west to seek his fortune.

To this day historians debate what Burr hoped to accomplish out in the Louisiana Purchase. Some say Burr only wanted to invest in land while others believe he meant to raise an army and invade the Spanish Territories. But the darkest rumor was that he meant to attack New Orleans and pry lose the western United States from the rest of America. The author of “Treason Trials” thinks Burr was simply a scam artist.

Tales of vast numbers of roving armed men abounded, but when the Ohio militia arrived at Blennerhassett Island in December 1806 to stop the rebels, they found boats and provisions but no army. Burr was some 200 miles away at the time. Yet this was the essential evidence of a charge of “levying war.” The rest was words in one form or another.

What is treason under American law? The answer is by no means clear today and it was even less so when our nation was young. At one time in England you could be beheaded for casting the horoscope of the king: it was considered treason to predict the monarch’s death. In a reaction to this vagueness, the framers of the U.S. Constitution wrote a definition of treason, and no other crime, into the document itself. Article III provides in part “Treason against the United States shall consist only in levying war against them or in adhering to their Enemies, giving them aid or comfort.” However, this still did not settle the matter. Some argued that common law treason also existed.

Shortly before Burr came to trial, the Supreme Court ruled in Ex Parte Bollman, 4 Cranch 25 (1807), that a conspiracy to levy war was not the same as actually waging war. Hence the former was not treason. Yet a curious bit of dicta in Bollman actually seemed to reverse the thrust of the Court’s holding: it held, in pertinent part, that if an armed force assembled for treason then one involved with them could be deemed a conspirator even if not physically present. Thus at Burr’s trial a crucial decision had to be made: would evidence of conspiracy be deemed admissible?

Burr’s trial in Virginia was presided over by Chief Justice John Marshall: those were the days when U.S. Supreme Court justices spent part of the year “riding the circuits.” Even though Jefferson badly wanted Burr convicted, Marshall excluded conspiracy evidence. Treason had to be the actual levying of war or it was not treason. The resulting decision, United States v. Burr, 25 Fed. Cas. 2, 55, Nos. 14,692a, 14,693 (C.C.D.Va 1807), neatly distinguished the dicta in Bollman. As a result, Burr ‘walked.’

Incidentally, who wrote the decision in Bollman? It was Chief Justice John Marshall. How he came to distinguish Bollman makes for fascinating historical speculation and legal study.

This book is about the ‘trials’ of Burr because when Burr was found not guilty of treason Jefferson demanded he be prosecuted for violating the Neutrality Act. Burr was acquitted again. Yet John Marshall is clearly the real hero of “Treason Trials.” If he had not stood fast in Bollman and Burr America might have developed a common law of treason. What other losses of freedom this might have led to can only be imagined.

United States v. Burr lives on. See Cramer v. United States, 325 U.S. 1 (1945), a case that is as scholarly as any law review article while reading like a movie scenario, wherein the Supreme Court split 5-4 over what constituted treason. The Burr story deserves to be retold because it shows the human side of our Founding Fathers as well as an important stepping-stone in our nation’s constitutional jurisprudence.

The moral of “Trials” is best summed up in a dissent by Justice Felix Frankfurter. “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” United States v. Rabinowitz, 339 U.S. 56, 69 (1950).

William B. Stock is appellate counsel to Cheven, Kelly & Hatzis.