A review of the secondary literature on the Burr-Hamilton duel does indeed reveal some inconsistency on whether the duel was illegal. Perhaps the inconsistency is partly the result of conflicting personal and political judgments contemporary to the event: Burr and Hamilton were leaders of opposing political factions.

The duel was fought on the early morning of July 11, 1804. Burr and Hamilton, and their seconds, had rowed out separately from New York City across the Hudson River to a narrow spot just below the Palisades at Weehawken, New Jersey. It was a secluded grassy ledge, only about six feet wide and thirty feet long above the river, with no footpath or road leading to it. Cedar trees growing on the ledge partially obscured it from across the river.

It was a place where duelists from New York City could go to settle their affairs in secret as dueling per se was not illegal in New Jersey. Duels took place at the Weehawken spot from about 1799 to 1837, when the last determined pair of duelists were interrupted in their preparations by a police constable, who put them in jail to await the action of the grand jury.

Hamilton’s 18-year-old son Philip had been killed in a duel there on January 10, 1802, just two years previously. After that, Hamilton had successfully helped pass a New York law making it illegal to send or accept a challenge to a duel. Those convicted were liable to lose the right to vote and were barred from holding public office for 20 years, but no duelist had yet been prosecuted. Public sentiment supporting the duty to uphold one’s honor if it had been questioned was still strong and could not easily be ignored, even by those who questioned the practice of dueling.

The participants in a duel—including the principals and their seconds—also typically arranged things in order to make it difficult to convict them. For example, they ensured that none of the participants actually saw the guns as they were being transported to the dueling ground, they kept silent about their purpose, and they had the seconds turn their backs while the shots were exchanged. This would allow them to later deny having heard or seen specific things, decreasing the chance that they might be held as accessories to a crime.

After the duel, Burr and Hamilton were each transported back across the river by their seconds, Burr having mortally wounded Hamilton, who died at his physician’s home the following day.

In New York City, a coroner’s jury of inquest was called on the 13th of July, the day after Hamilton’s death. Although Hamilton was shot in New Jersey, he died in New York, and therefore, Burr (his enemies said) could be prosecuted in New York. The jury sat intermittently until August 2, and considered, among other evidence, the contents of the letters that Hamilton and Burr had exchanged before the duel. These letters suggested to some on the jury that Burr had in fact enticed or even forced Hamilton into the duel, pushing the affair over the line from one of settling honor to one of deliberate murder which was a capital offense.

The coroner’s jury returned a verdict that Burr had murdered Hamilton, and that Burr’s seconds were accessories to the murder. New York then indicted Burr not only for the misdemeanor of “challenging to a duel,” but also for the felony of murder.

In November, Burr was also indicted for murder—which is to say, not for dueling—by a grand jury in Bergen County, New Jersey, because the duel had taken place there.

After the duel, Burr was apparently surprised at the public outrage over the affair. Fearing imminent arrest, he fled to New Jersey, then to Philadelphia, and then to Georgia.

He wrote to his daughter Theodosia: "There is a contention of a singular nature between the two States of New York and New Jersey. The subject in dispute is, which shall have the honor of hanging the Vice-President. You shall have due notice of time and place. Whenever it may be, you may rely on a great concourse of company, much gayety, and many rare sights."

He was still the Vice President, however, and he determined to go back to Washington to act as President of the Senate during its upcoming session and preside over the debate and vote concerning the impeachment of Supreme Court justice Samuel Chase. The impeachment proceedings were part of a partisan struggle between Jeffersonian Republicans and Federalists, and Burr might be expected to influence the outcome if he were allowed to preside over the Senate. A large group of Congressmen signed a letter to New Jersey Governor Joseph Bloomfield describing the Hamilton-Burr affair as a fair duel and asking him to urge the Bergen County prosecutor to enter a nolle prosequi in the case of the indictment, in other words, to drop the case. This is what eventually happened.

The murder charge in New York was eventually dropped as well, but Burr was convicted of the misdemeanor dueling charge, which meant that he could neither vote, practice law, nor occupy a public office for 20 years.

Calling the media the "4th branch of government" is a rhetorical device, not a serious statement of fact. The point is to emphasize that the press is not a mere passive reporter of the facts, but a powerful actor in the political realm.

Calling it "the 4th branch" not only emphasizes the amount of power it wields, but is often meant to suggest that that power is not under the control of the people in the same way that their elected representatives are. The implication is that it acts as a shadow government, unaccountable to the people, but is instead beholden to special interests of one sort or another, or that the press's supposed separation from the government is largely an illusion. The corollary is that the press sometimes menaces rather than protects, or controls rather than serves, the public.

The "4th branch of government" is a phrase that appears to have first surfaced among critics of FDR's New Deal in the 1930s. It referred not to the press, but to the collection of new Federal regulatory agencies with top officials appointed by the Executive Branch. Their function was quasi-judicial, and they were not directly accountable to the people.

Identifying the "4th branch of government" as the press came a decade or so later. Hartford Courant editor Herbert Brucker, in his 1949 book, Freedom of Information, devoted some ink to it. He explicitly equated "the 4th Estate" (another, older phrase often applied to the press, which has its own linguistic history derived from British and French politics) with "the 4th branch of government."

Journalist Douglass Cater entitled his 1959 book on the practical relationship between the government and the press, The Fourth Branch of Government. Both authors were convinced that, insofar as the press did act as a true political player (rather than an unbiased observer of politics), it corrupted itself and went astray from its primary responsibility—to convey important information and to act as a nonpartisan watchdog for the public against all trespassers on their rights.

Lately, some political writers have used the phrase, "the 4th branch of government," to mean the voters' power to form law directly through petition or referendum, as in California.

The 1st Amendment of the Constitution says, “Congress shall make no law ... abridging the freedom ... of the press.” The Constitution establishes a government with three branches, but it does not establish a press or a media. What it does do is prohibit the government from trying to control what people say, either in the press (and by extension in other forms of media) or outside the press.

The core principle is that in the U.S., as distinct from many other countries, the media (and the people in general) are not established or granted rights or status at the discretion or pleasure of the government. Rather, the government's power is entirely derived from the "just consent of the governed." The point of the 1st Amendment is to make sure that the government does not overreach itself by trying to limit the basic rights of the people, such as their right to speak freely, including their right to criticize the government. The government does not grant that right. It already exists, no matter what the government might say or do.

The 1st Amendment states the consequence of that fact: Congress cannot limit freedom of speech. The Constitution recognizes the press's freedom as fundamental and prevents the government from infringing on it.

Another way of demonstrating this: The government, barring a few exceptional situations, has not put itself in the business of funding the press, much less actually running a news organization (rather than a public information office). One exception is the grant money that partially funds the Corporation for Public Broadcasting and National Public Radio (and fully funds international broadcasting entities such as Radio Free Europe, Radio Liberty, and Radio Free Asia).

Another exception is Voice of America, the government agency that broadcasts radio and television abroad. VOA is prohibited by the Smith-Mundt Act, however, from disseminating its programming directly to the American people. This was partly out of fear that an administration would find it a useful tool for selling itself to its own constituents and thereby unfairly consolidating its own power against its political opposition.

Incorporating the press into the government would make the media more accountable in some sense for what it says and does, and would make it less dependent on large commercial interests for success. It would likely make the media more careful and guarded about what it said. No matter what your political perspective, it is not difficult to think of instances where that would have been a good thing.

Politicians and journalists have recently talked about giving government subsidies to news organizations suffering from a dwindling subscriber base and shrinking audience or advertising revenues. This idea they justify under the notion that the press or the media is a kind of public service or utility and is valuable to the general welfare of the country. This would be an of extension of the idea of the electromagnetic broadcast spectrum as a public resource that is allocated and protected by the Federal Communications Commission.

Trying to bring the press under the umbrella of the government, even as a separate "branch," would join the interests of the press with the interests of the government that funded it, making it less likely to criticize the government. The press, then, as a government entity, would be perceived (and truly function) as a propaganda ministry, a partisan political tool.

This would jeopardize the press's credibility as objective, making it less valuable to the public. It would also introduce a largely unpredictable period of experimentation, resetting the most fundamental structure of the government by adding a 4th branch. It would also re-frame the relationship of the government to the people, from one in which the government is granted its limited power by the people (who always maintain their rights), to one in which the government is the granter and administrator of rights, such as, here, freedom of speech.

There are many countries in the world where this is the model. Many of them have media that are largely or even exclusively government-run (or at least government-funded). Despite the occasional desire of politicians or government bureaucracies to control a media that annoys or criticizes, the Constitutional guarantees of freedom of speech and of the press have largely prevented such action here.

By law, the press is limited in its content when such content would be libelous, obscene, seditious (leading to "imminent lawless action"), or would threaten national security or the public safety. Restrictions on "hate speech" also limit the freedom of the media, as do copyright laws. It has been along the border of these limitations that skirmishes between the press and the government have been fought for nearly the entire history of the U.S.

Such skirmishes began in earnest with the passage of the Sedition Act of 1798, which, for a time, made it an offense "To write, print, utter or publish, or cause it to be done, or assist in it, any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States, or to stir up sedition, or to excite unlawful combinations against the government, or to resist it, or to aid or encourage hostile designs of foreign nations."

Nevertheless, it is a sign of how little support the Constitution gave to the government to define for itself the content of what the press could publish that 1st Amendment cases involving questions of the freedom of the press were decided in what historian Lucas Powe calls a "haphazard" fashion until the 1964 Supreme Court decision of The New York Times v. Sullivan, which clarified what constituted libel and what did not.

In the fall of 1857, the Kansas Territory's proslavery legislature met in the town of Lecompton and worked out a constitution, which it proposed to put up for a vote. The vote, however, was only between "the constitution with slavery" or "the constitution without slavery."

The proposed constitution was written in such a way that a vote "for the constitution without slavery" still allowed the residents of Kansas to keep the slaves they owned, while preventing new slaves from entering the territory.

Anti-slavery voters boycotted the referendum and consequently the "constitution with slavery" passed by a large margin. Kansas voters, however, eventually elected a new legislature and defeated the Lecompton Constitution. In 1859, they ratified the Wyandotte Constitution that outlawed slavery.

Article 7, Section 1, of the Lecompton Constitution stated that "… the right of the owner of a slave to such slave and its increase is the same and as inviolable as the right of the owner of any property whatever." The slave's "increase" meant the children of the slave, so they would still have been considered slaves, as would those slaves' children into the future.