History of the Federal Judiciary

History of the Federal Judiciary

  The Aaron Burr Treason Trial — Historical Background and Documents
A Short Narrative

The trial of Aaron Burr for treason in 1807 has few rivals in American history for dramatic appeal and for its colorful cast of characters. The accused traitor had been Vice President during the first administration of Thomas Jefferson. In the summer of 1804, Burr killed his rival Alexander Hamilton in a duel, an event that effectively ended Burr’s career in national politics. Three years later, he was on trial, charged with the capital crime of treason by the government headed by Jefferson, his former partner in political office. Presiding over the trial was John Marshall, Chief Justice of the United States, the President’s distant cousin and political foe. Finally, there was James Wilkinson, general of the army, once Burr’s associate and at trial his chief accuser. With these principal players, the trial in the U.S. Circuit Court at Richmond was as much high political and personal drama as it was a judicial proceeding.

The law of treason

From the standpoint of constitutional law, the Burr trial is notable for Chief Justice Marshall’s landmark decision narrowly construing the Constitution’s definition of treason and thereby making conviction for this crime exceedingly difficult. Article III, section 3, of the Constitution provides that “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” The government charged Burr with the first of these two crimes of treason, levying war against the United States.

In limiting treason “only” to levying war and giving aid and comfort to enemies, the framers established a more restrictive definition than had prevailed in Great Britain. Some of the language used in the Constitution was identical to an English statute of 1352 that listed seven treasonable actions, including levying war against the king and adhering to his enemies and giving them aid and comfort. Of the other treasonable actions in the English law, the most important was “compassing” (bringing about) or imagining the death of the king. English judges had extended this category of treason by “construction” (interpretation) to embrace spoken or written words critical of government policy and actions taken to prevent the execution of a law. The framers’ omission of this definition of treason was intended to restrict the concept of “constructive treason”—in other words, speaking or acting to encourage treason—that in England had been exploited to suppress dissent and political opposition.

At some level, however, a federal law of treason could not entirely dispense with the concept of constructive treason. The Constitution might define treason as “levying war,” but the precise meaning of that term could only emerge by judicial construction in a series of cases. Before the Burr trial, the few United States cases of treason were limited to the federal government’s prosecution of persons involved in resisting a tax on distilled spirits and a direct tax in the 1790s. These cases were not important precedents for the Burr trial, though they provided examples of what some federal judges regarded as the conditions and circumstances necessary to constitute levying war. To discover the meaning of levying war, the Burr trial lawyers combed through many volumes of reports of English state trials. These cases shed much light, but American lawyers had to choose carefully which parts of English law they wanted judges to say were applicable to the United States.

The Burr conspiracy

The government prosecutors alleged that Burr levied war against the United States as part of a conspiracy to establish a separate confederacy composed of the Western states and territories. Separation of the West from the union was a real possibility in the early nineteenth century, when many doubted whether a republican form of government centered on the Atlantic coast could effectively extend its jurisdiction to the vast region between the Alleghenies and the Mississippi River. Independent-minded Westerners were eager to expand settlement into territories still belonging to Spain, causing endless friction that threatened to embroil the United States in a war with that nation. The West remained a highly unstable region, where a man of talents and enterprise might find opportunity.

Aaron Burr clearly believed the West offered him a second chance after his fall from grace. Nearing 50 after his fatal encounter with Hamilton, Burr was full of restless ambition, determined to play the grand role he believed was his destiny. In 1805, he floated down the Ohio and Mississippi to New Orleans, greeted enthusiastically at various stopping points. This triumphal tour buoyed his hopes, and he set about making plans, seeking funds, obtaining supplies, and recruiting followers for a second expedition to take place in the fall of 1806. Burr found recruits among young men living in the interior section of the country, susceptible to his persuasive charm and motivated by dreams of winning glory and fortune. He found willing financial backers as well, including one Harman Blennerhassett, an immigrant Irish lawyer who built an idyllic estate on an island in the middle of the Ohio River. Blennerhassett not only provided funds, but his island was nicely situated to serve as an assembly point for men, boats, and supplies.What were Burr’s intentions? Clearly, he planned some kind of expedition that was military in character. Did he envision a war with Spain, in which he would lead an attack upon Spanish possessions in North America, invade Mexico, and liberate South America? If this was his aim, he was not a traitor, though he might be in violation of the Neutrality Act of 1794, which made it a “high misdemeanor” to engage in military operations against a foreign power with whom the United States was at peace. If such an operation succeeded, however, Burr most likely would not be prosecuted but hailed as a patriot whose military exploits fulfilled the expansionist aspirations of his countrymen. Or, did Burr’s proposed expedition against Spain mask a traitorous design to foment revolution in the West and establish a separate grand empire extending from the Mississippi Valley to Mexico City and beyond?

Burr’s enterprise collapsed before it had hardly begun, thanks to information provided by General Wilkinson, who was also governor of the Louisiana Territory. Burr had drawn Wilkinson so far into his plans that the two communicated in “cipher,” a code in which numerals are substituted for letters. In October 1806, Wilkinson got cold feet and decided to turn informer. He sent President Jefferson a translated copy of a cipher letter said to be from Burr. This letter, dated July 1806, spoke of plans to move down the Ohio in mid-November and proceed to New Orleans. Wilkinson subsequently furnished additional information that Burr was raising an army of 7,000 men, that a certain unspecified territory was to be “revolutionized,” and that seizures were to be made at New Orleans.

Ex parte Bollman and Swartwout

Jefferson responded by issuing a proclamation of conspiracy. In short order, Burr’s “army” melted away to a few hundred recruits. Wilkinson himself took action in New Orleans, declaring martial law and rounding up suspects and potential witnesses. Among these were Burr’s associates, Erick Bollman and Samuel Swartwout, who had carried messages, including the cipher letter, from Burr. Wilkinson sent them under military guard to Washington, where they were held in custody. In February 1807, the Supreme Court granted their motion for a writ of habeas corpus, by which the prisoners were brought into court for an inquiry into the legality of their imprisonment.

Marshall’s opinion in
Ex parte Bollman and Swartwout ordered the prisoners’ release on the grounds that there was no probable cause to commit them on charges of treason. The opinion offered general observations about the nature of treason that were to have an important bearing in the trial of Aaron Burr. To be traitor, said Marshall, an individual did not have to appear “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.” By the time this opinion was published in the newspapers, the Jefferson administration had already decided to prosecute Burr for treason. The government was fully aware of the difficulty of securing a conviction for treason. Indeed, its quick and effective action in suppressing the conspiracy before it ripened into open warfare compounded the problem of proving overt acts as required by the Constitution. The Bollman opinion, however, might have encouraged the President and his legal advisers that they could make a case against Burr. They chose as the overt act required for conviction the events that took place on Blennerhassett’s Island in the Ohio River on the night of December 10, 1806. A body of men had assembled there and was preparing to embark down river, apparently to join up with other detachments and proceed to New Orleans. There was a brief confrontation of sorts when a Virginia militia unit attempted to dissuade Blennerhassett and the others from leaving the island. The militia backed off in the face of drawn muskets, and Blennerhassett’s party proceeded on its way. Burr himself was not on the island at the time, having gone ahead weeks earlier, but the Chief Justice himself had said that a person could be a traitor, although “remote from the scene of action.”

U.S. Circuit Court, Virginia: Preliminary examination

While the Supreme Court was considering the case of Bollman and Swartwout, an army lieutenant holding a copy of the President’s proclamation arrested Burr in the Mississippi Territory. By late March 1807, the prisoner was in Richmond for a hearing before Chief Justice Marshall, who conducted a preliminary examination in the U.S. Circuit Court for Virginia. Because Blennerhassett’s Island lay inside Wood County, Virginia (now West Virginia), Burr’s case fell within the jurisdiction of that court, on which Marshall and U.S. District Judge Cyrus Griffin sat. The court was not then in regular session, but a judge could conduct a criminal hearing at any time. At Burr’s preliminary hearing on March 31, 1807, U.S. Attorney George Hay and U.S. Attorney General Caesar Rodney asked Judge Marshall to commit Burr to jail on charges of treason and the misdemeanor of waging war against Spain, though the government’s real interest was in convicting Burr of treason. John Wickham and Edmund Randolph represented Burr, who also argued on his own behalf.

On April 1, Chief Justice Marshall read the first of many opinions he was to give in this case. As in the
Bollman case, he concluded that the evidence was not sufficient to show that Burr’s alleged treasonable designs had “ripened into the crime itself by levying war against the United States.” He did, however, order Burr to be committed for the misdemeanor of carrying on a military expedition against Spanish territory. He set bail at $10,000, and the prisoner entered into a bond in that amount for his appearance at the next session of the circuit court in May. Like any other accused person, Burr did not have to put money up front. Rather, he and some friends acting as “securities” bound themselves to pay in case he did not show up in court.

U.S. Circuit Court, Virginia: Grand jury

Burr’s case by now had become deeply embroiled in politics, with Republicans supporting President Jefferson’s measures to bring the accused traitor to justice and Federalists rallying to defend Burr against the charges. Many in heavily Republican Virginia were inclined to believe Burr had acted traitorously, and this popular belief made jury selection more difficult and time consuming. After the opening of the spring term of the U.S. circuit court on May 22, 1807, a grand jury of sixteen was sworn in, and Chief Justice Marshall delivered a charge that was not published but reportedly focused on “the definition and nature of treason, and the testimony requisite to prove it.”

Burr’s counsel seized the offense by attacking the prosecution and its motives. Luther Martin, who joined Burr’s defense in time for the grand jury proceedings, assumed the role of principal attack dog. In one notably vitriolic rant, he denounced a President who had “let slip the dogs of war, the hell-hounds of persecution, to hunt down my friend.” Earlier, Jefferson had unwittingly and unwisely made himself vulnerable to such censure by publicly declaring that Burr’s guilt was “beyond question.” Martin’s outburst came in the midst of the most important argument at this stage of the proceedings, prompted by Burr’s motion for a subpoena duces tecum to President Jefferson.

A subpoena duces tecum orders a person to appear in court and “bring with you” certain specified documents. Burr wanted the President to turn over a letter and papers received from Wilkinson, together with copies of the President’s reply and certain directives issued by the departments of war and navy. The motion raised the fundamental question of whether the federal judiciary could issue such a subpoena to the President without violating the constitutional principle of separation of powers. The subpoena followed an earlier contest between the Jefferson administration and the Supreme Court concerning the delivery of a commission to a justice of the peace. In that earlier case, Marbury v. Madison (1803), the Supreme Court declined for lack of jurisdiction to order the delivery of the commission but rebuked the executive branch for not doing its legal duty.

In Burr’s case, too, the threatened confrontation did not occur. Chief Justice Marshall granted the motion for a subpoena, maintaining that the President was not exempt from court orders designed to protect the constitutional rights of criminal defendants. By the terms of the subpoena, the President was to provide the documents but did not have to appear personally. Jefferson did not acknowledge the court’s order but informed U.S. Attorney Hay that he had substantially complied with the subpoena’s terms by previously delivering the requested documents to the prosecutor. In so doing, Jefferson claimed to act voluntarily and did not acknowledge the judiciary’s right to compel him to release executive papers. He also maintained that in the interests of national security the President must be the sole judge of which papers could be safely disclosed. Jefferson here asserted the doctrine known as “executive privilege,” a claim invoked by President Richard Nixon in 1974 in response to a subpoena
duces tecum ordering him to produce tapes of White House conversations relating to the “Watergate” case. Whether or not the papers sought by Burr were material to his defense, the motion for a subpoena did provide an opportunity for his lawyers to score points against the administration. Another integral part of their legal strategy was to discredit Wilkinson, the prosecution’s star witness, whom they accused of criminal misconduct in ordering arrests, forcibly seizing and imprisoning potential witnesses, and then having them transported under military guard to Richmond. Wilkinson, indeed, proved to be a disappointment to the prosecution, his credibility tarnished by suspicion that in revealing Burr’s plot he was merely trying to save his own neck. His testimony before the grand jury was undermined by indications that he had altered the famous cipher letter in ways to conceal his own relationship with Burr. Despite its questions about Wilkinson, the grand jury on June 24 returned indictments against Burr and Blennerhassett for treason and the misdemeanor charge of carrying on war against Spain. Chief Justice Marshall scheduled a trial for Burr at a special session of the court beginning August 3.

U.S. Circuit Court, Virginia: Trial for treason

After several postponements because of absent witnesses and a week of selecting twelve jury members, the court on August 17, 1807, directed the jury to be sworn in, the indictment read, and the case opened by the government. Assisting Hay in the prosecution were Alexander MacRae, then lieutenant governor of Virginia, and William Wirt, a future U.S. attorney general. Burr’s legal team now numbered five, with Benjamin Botts and Charles Lee joining the previously retained Wickham, Randolph, and Martin.

The government’s case hinged on proving that Burr’s military enterprise had a treasonable design; that the gathering of men on Blennerhassett’s Island was a partial execution of that design and constituted an overt act of levying war; and that Burr, though not then on the island, could be considered in law as “constructively” present. To make this case, the prosecution intended to offer the testimony of 140 witnesses. The defense, believing that a Virginia jury would be unsympathetic with the accused, settled on a strategy of taking the case from the jury and placing the question of Burr’s guilt in what it hoped would be the safer hands of the court. After only a few witnesses had testified, Burr’s counsel moved to exclude the further admission of evidence as “collateral,” not directly pertinent to the indictment’s specific charge. At best, they argued, such testimony could show Burr’s treasonable intentions, his connection with the gathering of men on the island, or his participation in actions elsewhere and at other times, but it could not prove that Burr levied war on Blennerhassett’s Island.

In an exhaustive hearing on this motion, the lawyers rummaged through the whole course of English and American precedents on the law of treason. All the argumentation boiled down to the meaning of “levying war” in the treason clause of the Constitution. The prosecution pressed for a broad definition by which the gathering of armed men on the island constituted an overt act of levying war. Citing Marshall’s statements in
Ex parte Bollman and Swartwout, Hay and his team argued that Burr was, in the language of English common law, legally present on the island as the “procurer,” that is, the instigator and organizer of the armed force plotting to overthrow United States authority in New Orleans. Wickham and the other defense lawyers insisted upon a strict definition of treason that required an overt act of force and the direct involvement of the accused in that act of force.

On August 31, Chief Justice Marshall delivered the major opinion of the Burr trial, upholding the defense’s motion to exclude the further admission of testimony. The opinion was dense and complicated, full of qualifications and intricate legal distinctions. Speaking only as a circuit court judge, Marshall appeared to shy away from making definitive pronouncements on such a difficult and sensitive constitutional issue as the law of treason. The opinion was nonetheless clear and forthright in its essential holding that the Constitution required a strict definition of treason—that is, that the accused had to be shown to have levied war according to the precise terms set out in the indictment.

Rather than repudiate his earlier decision in
Ex parte Bollman and Swartwout, Marshall explained and qualified it. That opinion, he said, despite its apparent relevance to Burr’s case, did not extend to one who counseled or advised treason but performed no act in carrying on the war. He also denied that the earlier opinion dispensed with the idea of force as an essential element in levying war. Ultimately, Marshall ruled that the indictment was flawed in alleging that Burr levied war on Blennerhassett’s Island. Instead, it should have stated the truth that the accused was absent and that his treason consisted in procuring the assemblage. Such procurement was the overt act that would have to be proved by two witnesses. None of the testimony could establish this overt act. With no further testimony to consider, the jury had virtually no choice but to acquit. In an unusual twist, however, the verdict, instead of a simple “not guilty,” declared Burr “not guilty by the evidence presented.”

The decision of August 31 effectively ended the trial of Aaron Burr and spared him the penalty of death by hanging. His ordeal in court lasted another month and a half, however. After failing to convict Burr of treason, the government halfheartedly tried him on the misdemeanor charge of waging war on Spain. This trial, too, ended in acquittal, on grounds similar to the earlier acquittal. The federal attorney Hay then had one more legal weapon at his disposal: a motion to “commit,” or send, Burr for trial in the federal court of Kentucky or Ohio on treason and misdemeanor charges.

In this commitment hearing, the court was again acting as an examining tribunal, as it had been the preceding spring when Burr was first brought before Marshall. Because the rules of evidence were less strict in such a proceeding, the court allowed the testimony of the many witnesses whose evidence had been excluded in the preceding trials. Over the next month Marshall and Judge Griffin (silent throughout the Burr case) listened patiently to the mass of testimony and long-winded arguments of the lawyers. Finally, on October 20, Marshall ruled on the motion. Once again, he refused to commit Burr for treason but ordered him to stand trial in Ohio on the misdemeanor of waging war against Spain. Although Burr was subsequently indicted on the misdemeanor charge in the U.S. Circuit Court for the District of Ohio, the government chose not to prosecute him. For all practical purposes, he was a free man.


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