The Aaron Burr Trial - UR Scholarship Repository - University of

The Aaron Burr Trial - UR Scholarship Repository - University of

University of Richmond UR Scholarship Repository Honors Theses Student Research Winter 1967 The Aaron Burr Trial Claudia Bell Follow this and add...

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Aaron Burr
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University of Richmond

UR Scholarship Repository Honors Theses

Student Research

Winter 1967

The Aaron Burr Trial Claudia Bell

Follow this and additional works at: http://scholarship.richmond.edu/honors-theses Recommended Citation Bell, Claudia, "The Aaron Burr Trial" (1967). Honors Theses. Paper 398.

This Thesis is brought to you for free and open access by the Student Research at UR Scholarship Repository. It has been accepted for inclusion in Honors Theses by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]

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3 3082 00688 8159

THE AARON BURR TRIAL

by Claudia Bell

typed by Susie Johnston Honors Paper December 19, 1967

PREFACE

The Aaron Burr trial was one of the most interesting cases in American history.

Not only was the testimony at the inquiry significant

but all events leading to the trial were important.

Only those

occurrences in Burr 1 s life which led to his tria 1 a re des.crihe.d;-. since perronal situations have no bearing on the case.

The trial

itself has been clone with as nm.ch detail as possible in order to make the outcome of the inquest understandable.

TABLE OF CDNTENTS CHAPTER

I. II. III. IV.

BACKGROUND •

PAGE

....

• • • • •

INDICTMElIT B2FORE TP..E GR.Ai'JD JURY • TRIAL BUJRE THE PEI'IT JURY. •

SUhMARY.

FOOTNOTES. • BIBLIOGRAPHY •



..

.... .. • • ..

. 1

.13 .22

...

.33

..

.37

.43

CP.AP'I'ER 1

BAGKGROillm One of the most iT!T_!)Ortant events of 1807 was the .Aaron Burr trial.

by the final day of the inquest a dispute between the judicial and executive branches of the federal government had been brought to a head and the consr,ructive definition of treason had been negated.

Viewers saw

a conflict between the President of the United States and the Chief Justice, and between the defendent at the trial and the Hepublican administra c.ion.

Durin6 the trial men perjured themselves for money

or for prc:stige whereas others fo1:ight for the honor of a man who had formerly been praised by the citizens of the United Static.s. W<::S

The trial

destined to become one of the most disputP.d cases in United States

history. The presidential election of 1800 marked the first of r:iany events which culminated in the

Aa~on

.burr trial.

riecause of a tie in electoral

votes between. tbe candidates Thomas Jefferson and Aaron Burr, the decision as to wb.o vrould be the next chief executive had to go to the House of 1 Representatives. The Twelfth Amendment tot he Constitution rer::edied the situation of a ti8 in electoral votes by creating separRte ballots for the election of president and vice- president.

Antagonism rieveloped

between these tuo men when the Federalists, excluding the Federalist leader, Alexander Hanilton, threu their support behind Burr, hoping that 2 As dislike greu between the candidates, he would sup~iort their ;~olicy.

J_

2 .burr, who h'aci thought of himself only as. vice-president and then found hir.1self running, against his wishes, for president, went to Jef_:_·erson to assure him that he (Burr) would support a Jeffersonian administration and ,coula not divert one vote from the true presidential candidate. Jefferson was sure of Burr 1 s honorable

concm,~t

until his good friend

and astute politician, J2mes Hadison, insisted that Burr's men had in some way paici the Federalists.

Jefferson would had lost the election

i f he had not had the support of Alexander Harnilton who hated end mis-

trusted Burr more than he disliked tTeffcrson.3

In the years Following,

the estrangement grew between these two r11en, until, in 1804, when Burr was running for governor of New York, the Hepub-licans accused the gubernatoria 1 candidate of b .qine; votes from the Feuera lists. l+ 1

'.!.'his

enmity reached its peak in the 1807 trial. When Thomas Jefferson took the office of Prt:sident b besan his assault on the judiciary.

lbOl, he

He incluued in his attack the

Chief Justice of the Supreme Court, John Harshall, who had been appointed Chief Jnstice in January, 1304, and was soon to be a lawyer of Great renown.

Previously the H.epublicans had succeeded in passing a law which

again. Teguirecl alLjustices to ride circuit.5

Ironically , this law

was the very one ..which brought the Chief Justice of the Su ..,reme Co 11rt to preside over the Aaron Burr trial.

'.i.'he President ·was sensitive and

almost afraid of the critidsm that he received from the Supreme Court. He att0cked llarshall 1 s effort to write a bioc;raphy of George and accuseci

:iii:;

Washington

of having 11 fri~::;idity toward lfoerty. 116

During Jefferson's first term of office as chief executive, his vice-president, Aaron Durr, took part in. a duel, in l~i04, uith Alexander Har:15.lton, which resulted in the death of the Federal:..st loader.

Because

3 of the duel, Burr became a political outcast and was forced -Go leave the government af:ter makin:; bis farewell speech to the Senate.

At

the time burr left the government, his supporters said that he had set'ved with honesty,

~mereas

others were suspicious of his actions.

After Burr -withdrew as vice-president, he be5an to conce±:ve of an expansion into the Spanish territorities of Eexico and .Florida which eventually led to his trial for treason. 7 The idea of attacking Spanish

uHr1 Burr.

possee>s~.ons

was not an orisinal idea

Previously the Hiranda Plot, narr.ed after the chief perpetrator

of the plot, Francisco de i1iranda, originating in the United S.tates, was discovered whereby armed vessels weru to capture Spanish Caraccas. Since the fe "eral government did not want any trouble uith Spain, it 1

halted the plot and ordAred those arrested prosecuteu for violation of the neutrality law of out of war wivh

1793 which had been passed to keep the United Strites

European countries.

8

Aaron rurr was later unjustly accused of plotting to div.ide the Union.

f.ven this plan had been discussed in eovernment circles, as

well as

b.)r

private citizens.

The ?eclcralists spoke of dividing the

United States in lt304, anc.i many settlers b,eyond the All(;gheny desired a separate country.9

Also, ·_,_'homas Jefferson himself said that some

of the states, meaning Louisiana a.id t>..entuch.-y, might be better off as a senarate entity.

He said,

11

God bless them uoth, and keep them in Union

if i t be .-~·or their good but sepanate them if it be better. rrlO After pis 1004 fare.:ell speech, Aaron 13ua ,beban his fil'St trip ttroµgh the \fost.

He 3aw that the ;;pirit of e}.tiansl.on was uictespread_

in _:.he \-Jest; that many

·;v.,;~terners

were eager for war w:d;li Spain to

re-_taliate for comr.1ercial and territorial grievances; and that no st were

4 , 11 eager f or aaventure.

.. lnth such encouragement, Burr bet;;an to draw

u, plans fo:r an in"'-' sion of He::=ico.

He told the uesterners that the

federal government would feel no need to interfere with his plans because an invasion would take place (mly when the inevitDble war with Spain broi:e out.

If a clash with Spain did not materialize, then Burr

and his men uould settle the Bastrop lands on the Hoshita rt.iver in the Louisiana 'i1e1-ritory (now Texas and Oklahoma), uhich iiurr had brought

12 from Colonel Livingston. In order to finance this expedition, burr needed money which he did not have in his possession.

Since Burr could not obtain as much

money as he needed from friends, J-1e concocted two outlandish tales whereby he could procure money frora foreign governments.

Burr's first

appeal for funds uas on Augustls, ll504, to Anthony Herry, the l3ritish foreign minister in vJashington. t:ion of the western

land~>

Since Great liritain desired the separa-

from the rest of the

Unit~d

St2tes, ilurr

proposed to lend his ;:issistance to effect this separation. in order to further convince Eerry to give support,

~,he

In Harch,

1805,

foreicn min-

ister was told that the inhabitants of Louisiana desired to sE:parc:ite but were .,_,raitint; for foreign assistance. 13 Hhen the .snglish grew suspicious of these endeavors, the adventurer turned to Spain for aid.

Again he pro;-;osed a plan for se,:aratim to

Don Carlos lfartinez de Yrujo, Harquis de Ca sea Yrujo, an influential Spanish official.

Spain wanted more than a separation, so a plan was

put forth to infiltrate y.J'ashington with .i:mrr 1 s men; to sieze the president and vice-presicent; and to take over the public money and arsenal.

If the plan did not uork, Burr uould take ships and men to

establish the independence of Louisiana and c,he \!est.

lh

Although

the plans were purely propaganda and were used only to t;ain the support of forei:i$n nations, they gave rise to 1·rild speculations convincinG sof.1e

5 that Burr was really involved in treasonable designs. In a,.idition to needit1;; nuney, Aaron Burr needed men for the expe"Th o(l')(L.$ dition. He tried to interest Commodore\! i'ruxtun, a leadin,; officer in the nnvy, who, although he actually never gave any support, also uas hostile to Jefferson.15

Andrew Jackson, destined to become president of the

United Stater;, supported the cause by loaning noney to Burr and by writing

let~ers

New Orleans.

16

of introducticJn to officials in various cic.ies, such as General James Wilkinson, comr.1ander at New Orleans, was

to be second in command.

He helped l:3urr recruit men ana gather supplies.17

l:Jome authorities have even speculated that he mic;ht have Ueen the one who suggested the plo::. to Burr.

Friends such as hatthew Davis, who later

compiled Bur2 1 s memoirs, and Samuel

Swartwuu~,

an impressionable young

man who worshipped i'Jili~inson and oecame Burr 1 s· messenger, joined the enterprise along with men from the Uest.

18

Burr Has introduced to the wife

of Hermon Blennerhassett, whose husband was an immigrant from Irebnd. After becoming a close friend O'f Hrs. Blennerhassett, Burr used Blennerhassett 1 s island on the

Ohio TLiver in the territo:rJ of

base for nll his operations

anc~

training programs.

Vir,~inia

19 These Vien and r.iore

joined for friendship's sake, for glory:, and for tb.3 promise:; of .At no time did Burr openly <::dvocate to them an

as the

inv,~sion

land •

of Eexico with-

out a war with Spain, nor did he so much as hint to anyone that he intended 20 to separate the western states fror:, the Union. :News of Burr's arrangements began to filter to the East and to thB President.

In January, i::;o6, Colonel Joseph Hauilton "9:viess, United

States District Attorney for l\e;1tucky, w::ote to the President about Imrr 1 s . 21 d es1gns.

Then General James L<>ton,

~!t~o

had asked l'urr if he could

be second in comr.1and and had been denied the post, went.. to Jefferson with his story.

Eaton had heard that the former vice-president wished

b

to divide the country but did not say.a word about this to Jefferson. Instead, he suggested that Burr was a dangerous nan and should be appointed as a i'oreign miniGter to get him out of the country.

However,

Eaton did tell Congress about Burr's plans hoping that this body wou.ld reimburse him (Eaton) for his Barbery States exploits whi.le a havy 2.2 agent. Even with all the inrormation he had received, by March the President still was not alarmed.

For three months he mulled over t.he

information, instead of immediately sending out agents to look into any traitorous designs or to stop any plot that had been formed.

Then,

in April, 1806, when word of Jefferson's exsiloits with Alexander Hamilton in the 1800 election came to light, the President, thinking that Burr had disclosed this news to the press, decided t.o luok into po:ssible treasonable designs.

By the

tL~e

that he sent John

Graha~

to the

area to investigate, rumors about Burr were beginning to get out of hand. Because of these rumors General Wilkinson was told to repel an invasion of Spain.

Later Jei'ferson sert Andrew Jackson to uncover any inrorma-

t.ion but when Jackson's report. said that Burr had only ten boats manned by unarmed men, the President put it aside.

23:

During the sur.uner of 1806 Burr and his associates thought. that Wilkinson was a loyal member of the group that would invade He:dco J but actually, the General was beginning to witharaw rrom the conspiracy. Partly on the orders of the President and parvly on his own init.iative, wi.Lkinson began to negiotiate wir.n the Spanish, com.'Ilanded by Cordero, to remove their troops from the disputed area around r,he :::>abine River. For so:ne unkr..own reason, the Spam.sh withdrew ir. the autumn of .ll:Su6 on their own accord.

Because of the Spanish withdrawal, llillcinson deciued

that the Burr pl.ut w:.:iuld eventually fai.L and therefore, he would be wise to c.ise:'.1gage himself fro:n the conspiracy or he would be arrested

?

along with .Burr.

The General also received a letter from Burr

sta-.;ing that all was ready for the invasion. incriminating evidence on Burr as

p~ssible

Wilkinrnn got as much

from the unsuspecting

Swartwout, Burr's messenger, hoping somehow to use the inrormation 2 to ·accuse Burr with out endangering hirnse lf. ~ 4 After the Spanish

withdrew and the lett-er nad been aelivered, Wilkinson began to hini., to the government that he knew of treasonab.Le designs in t.he West.. 1-1ilkinson said ·t-hat an illicit project was on foot which was a threat to the peace of the Um. ted States and thar. !le meant tu penetrate it: 27 After the sum.'Uer or 1806 developments began to go against t,t:e former vice-president.

No longer was the invasion of gexico a sure

thing, since war wit:1 Spain had. been averted.

Iiow Burr would have to

make more detailed plans fur a sett.tement uf tne Bastrop lands, while stil.L haring for a war with Spain. Daviess fi.Led an af1·ictavit 1n Burr planned to invade i,lcxico.

Then, on Hove:nber 5, 1806, Judge

I~em,ucky

for Bu.rr 1 s arrest saying that

Since the judge had not presented

sufficient evidence, the request for a grand jury was about to be denied when Burr himself asked for an investigatior:.

Eventually

Burr was aquitted by the grand jury and by the people of !:entucky.

~;

Hhile Burr was in Kentucky, General Wilkinson spoke with • _ •. 11( · WA!'>b1 l)!-1ht1. Pres1a.ent Jeff·ersonvabout Burr 1 s treasonable desit;T..s in the West. Un November 25, 1806, Wilkinson showed to the Chief Executive the cyphered letter that he had received fron Burr, except that, in the copy shown to the Presic.ient, the first line had been left out and some parts had been chnnged so that the letter would r.ot incriminate Wilkinson.

The letter, as shown to tlce President, read as follows:

Your letter, postmarked thirteenth l~ay, is recci ved. At length I have obtained funds, and have actually commenced. The Eastern detachment, from different parts and under different pretences, will rendezvous on the Ohio first of November. Everything

8 internal and external favors our views. naval protection of England is secured. Truxtun is going to Ja.r:i.aica to arrange with the admiral on that station. It will meet us at the Eississippi. ::'.:ngland, a navy of ti1e United States, are ready to join, and fi~al orders are given to my.friends and followers. It will be a host of choice spirits. ,Wilkinson shall be second to Burr only; HiDdnson shall dictate the rank and promotion of his officers. burr will proceed westward first August, never to return. With him goes his daughter; her husband will follow in uctoter, with a cor.ps of worthies. Send forthwith an intelligent and confidential friend with who:n Burr may confer; he shall return im:nediately with further interesting detailr:; ti:1is is essential to concert and harmony of movement. Send a list of all pcrs . ms known to Wilkinson west of the T!1ountains who could be useful, with a note delineating their characters. By your messenger send me four or five commissions of your officers, which you can borrow under any pretenses you plee,se; they shall be returned faithfully. Already are orders given to the contractor to forward six months' provisions to pJints '.lilkinson may na;1e; this shall not be used until the last moment; and then unaer proper injunctions. Our object, my de2r friend, is brought to a point so lO!'lg desired. Burr guarantees the result with his life and honor, with the lives arid honor ana fortunes of hundreds, the best blood of our country. Eurr 1 s plan of operation is to move rapidly down from the F1::.lls, on the fifteenth November, with the first five hundred or a thousand men, in light boats now constructing for that purpose; to be at Natchez between the fifth and fifteenth of December, there to meet you; there to determine whether it will be expedier;t on tne first to siege or poss by Baton Rouge. On receipt of this send Burr an answer. Draw on Burr for all expenses, etc. The people of the country to which we are going are prepared to receive us; their agents, now with burr, say that if we will protect their religion, and will not subject them to foreign Power, that in three weeks all will be settled. The gods invite us to glory and fortune; it re:r.mins to be seen whether we deserve the boon. The bearer of this [:;Oes express to you. He's a man of inviolable honor and perfect discretion, formed to execute rather than project, capable of relating fa.ct with fidelity, and uncapablc or relatine then otherwise; he is thoroughly informed of the plans ar::d intentions of Burr, and will disclose to you as far as you require, and no further. He has imbibed a reverence for your character and may be emba.rassed i~-;iYour presence; put hir:i at ease aLd he will satisfy you. ' At no place in the letter, which became disputed evidence in the trial, dici Burr write that he would attack New Orleans or set up an independent western country, but Jefferson chose to believe WiDdnson 1 s unconvincing report for two reasons:

rirst, because he did not want to

be involved in another Hiranda affair; and secondly, because he did not want hostilities with Spain.

28

9 Since Jefferson chose to believe HHkinson 1 s report, he thought that he hi3d better wo-rn the people of the United States about :urr. Accordingly, on November 26, 1J06, the Chief Lxecuti7e issued a proclamation which was the first official statenent to c;ive credence to the rumors being circulated about treason.

In the proclamation,

J ef-~erson warned responsible citizens to stciy out of any unlao·lful .

29

entcrpri.seso '

Finally on December 10, 1806, after J et'ferson had warned t.he people about Burr, the Colonel finally comnitted the act which men would later call overt and which would le<:id to his trial for treason.

Sixty unarmed

men with ten flatboats started down the Ohio J:tiver from Dlennerhassett 1 s island for the express purpose of settling 1·mstern lands.

l3urr wa:3 not

even with his men at his time but was two hundred miles away in kentucky. O:t:ficials immediately jumped to the conclusion that the flotilla was going to attack New Orleans and the Uest.

The Navy Department issued

orders for the arrest of an unsuspecting Eurr and his men.JO General "Wilkinson, in the nidst ofl the scare that an attack would be made on new Orleans, r"':ceived pemission from Jerfcrson to bring troops to Neu Orleans to prated the city.

Neu Orleans was put under

martial law and 'Hilkinson, a Benedict Arnold as far as Burr was concorned, posed as saviour erid leading patriot of the country.

1forc!-·c:nts

and officials were told that Bnrr had at least two thousand men with which to invade the city.

Pri'/ate papers were confiscated and citizens

uere thrown into jail, supposedly because they were spyint:; or

Fc.1.•e

rart

of the underground,

At this time P:t:· Eric Bollman and Samuel Swart-

wout, whose case

distined to become important in the Aaron Eurr

W'S

trial, were Drrested on December fourteenth and twelfth respectively.3 1

10 Eventually Congress began :to clamor for e statement about the supposed conspiracy.

On Thursday, January 22, 1007, Thomas Jefferson

addressed a joint sesmi..on of Congress about the conspiracy.

Then on

January 29, 1807, the President again addressed both houses informing them -chat Burr had passed Ft. Eassac on the Ohio River on December 31,

1806, with ten boats, none of which bad any military appearance. Jefferson's delay in alerting Congress to the danger-of conspiracy raises questbns on the President.' s motives and on the reliability of his informc.tion on the supposed conspir.?cy.

Even before the November Proclamation

Jefferson had reports of maneuvP.rs in the Hest.

Actually , he first

heard of the scheme in January, 1806, if not before.

In informing

Congress of the nlot hei Mentioned earlier inforr.wtion ccincerning Purr' s activities saying that as early as September he had reports> which continued into October.

Hhen the information remained confused, a man was

sent to the West to investigate the possibilities of a filibustering expe d i•t•ion. 32 About the time Gongress was asking_for information about tho conspiracy, Burr and his men arrived at Bayou Pierre neat territory of Nississippi.

Hatchez~_in

the

Here Burr, learning that he was still lieinG

accused of treason, wrote Cowles Eeade, ncting governor of the Eississippi territory, of his innocence and invited the citizens in the 2rea to search his boats for any evidence of treason.

Even thoµgh the Department

of vlar directed Neade to call out the tailitia to ::irrest Burr and his men, the governor agreed to meet with the suspect on Jan:ua:r.r seventeFmth. At this meeting, Burr said that he and his m-en were innocent and u0uld resist any attempt at coercion.

Eeade promised to protect the settlers

but instead haid the suspect arrested to stand trial for treason in the territory of Lississippi on February 2, 1J07.

33

Although the grand jury did not find Aaron Burr

guilt~r

of any

11

crime against the United States, when the alleged traitor was aco_uitted and asked to be discharc;ed, the Judge, 'i'homas Rodney, father Qf

-~he

Attorney-General for the United States Caesar Rodney, refused to grant the request.

Instead, the iJudge ordered Burr to either renew bail or stay

in jail, and until he decida:lbetween the two alternatives, the suspect ' must report to the court every day. The decision of Rodney uas the breaking point for Burr, who, on Februar-y- fourth, fled froD the oppression of the court.

c.1 O'-\tce.

Pla inepmen were sent after the suspect and a reiiard of two

thousand dollars for Burr's capt11re was offered by Robert Hilliams.34 Meanwhile, on February eighteenth, the case of Eric Bollman and Sami.1eL::Swartwout versus the United States, in which the defendents were charged with treason against the United States, was brought before the Supreme Court. 35

The defense made two points for the defendents: first,

that a message fo the President (the lJ 0 vomber proclamation) was inadrr.tssable as evidence; and secondly, the deyiosition of General '.-Jilkinson against the prisone:cs was not authenticated.36

Opinions of' the court

were "that nnless men were assembled, war could not be levied, 11 and "to constitute that specif'io crir.ie for uhich the prisoner now before the court has been committed, war must be ac~ually levied against the United States. "37

By virtue of these two stotements consp:i;facy to levy

war was not treason.

John Harshall, the presiding judge, also said that

the court considel'ed all those who had any pnrt in the levying of war as traitors.

Harshall 1 s words, which caused so nuch uncertainty in

Burr trial were,

111

the

if a body of men be actually assenblP.d for the purpose

of effecting by force a treasonable purpose, all those uho perform any part, hovre,1er minute or rer.1ote fron the scene of action, and uho are actually leagued in the ,;encral conspiracy, are considered traitors. 11138 Even as he gave this oponion, Harshall was unsure that tre statement was [l

correct interpretation of the Constitution and vowed tot.alee the

12 question again before the Supreme Court.

From these opinions, the

court decided that since no evidence of the actual le',rying of war had been given, the case was not within the jurisdiction of the court.

39

At the time of the trial of Bollman and Suartwout, Colonel Burr uas on his way to the inn of Colonel Hensons.

Wlien he stopped for di-

rer.tions to the inn,. Burr was recognized by a Nicholas Perkins, who informed Sheriff Theodore Brightwell of the suspect 1 s location. the sheriff did not come ou:b of t.he inn

w~_th

contacted Lt. Gaines from Ft. Stoddart.

lfuen

the accused man, Perkins

As Brightwell, who had been

convinced of Burr's innocence the day before , -was leadin[; the Colonel to safety on February nineteenth, Lt. Gaines and a small group of soldiers arre~ted the suspected consp±rator on the Tombigbee River in the territory

of Hississippi.

The soldiers took Burr to the fort to

trip to Washington.

pr~are

for the

On the way to Wasnington the prisoner was divurtecl

to F:redericksburg and from ,.there to Richmond, Virginia.

40

The arrest, based almost exclusively on Jefferson's proclamation, was illegal because Burr was siezed by a rnilitar,r force ui thou±: a warrant. 4l Since Burr was arrested without a wArrant, he was denied 'bis fundar:ental rif;hts as a citizen of the United States.

Hith the irregular detention

of Burr, judicial cards were stacked ae;ainst him before the trial ever began.

When the trial actually bet;an the illegality of the arrest was

mentioned, but the fact was never really ir.1pressed upon the t:!dmds of the

CHAPTER 11 INLJICT:MhiIT BEFUHE THE GHAND JURY

On Tuesday, March 26, 1807, Aaron Burr arrived in Richmond, Virginia, the district where the overt act had ·trccuI'red'.

un March 30, 1807, he

was taken to Eagle Tavern to stand before John Marshall, who was riding circuit at the time.

The United States, represented by Caesar A. Rodney,

the Attorney-General, charged Burr with high misdemeanor, in preparing a military expedition against Spain and with treason, in designing to sieze New Orleans.

Evidence issued at this time was the case of

Bollman and Swartwout versus the United States and the testimony oi' Nicholas Perkins. 1 During the next few days, the pleas for and against binding Burr for trial were heard at the courthouse.

Counsels for the prosecution

were Caesar A. Rodney, and George Hay, attorney for the United States in the District of Virginia. of Jefferson to the letter. and John Wickham.

Both Hodney and Hay fo.Llowed the dictates Counsels 1·or defense were Edmund Randolph

Wickham was a rising young .Lawyer, whereas Randolph,

the senior me:r.iber, was a good orator but mistook the f;trertgtl'f of his adversaries.

Hay opened the arguments for binding the prisoner by asking

that Burr be committed on two counts:

first, that he violated the

congressional act of June, 1'1'14, stating that any person who set foot on loreign soil or prepared an invasion against a foreign country on peacefu.L terms with the United States was guilty 01" high misdemeanor; and secondly, that he com.'Ilitted treason in p.Lotting "to sieze r:ew Orleans. The letter which General WiDdnson received from Burr would prove the first charge and the affidavits receivea. !'or the case of Bollman and

13

Swartwout would prove the charge uf treason.

Both of these incriminating

!acts were bolstered by Burr's flight from the law.

2

Hay's notion read:

The attorney of the United States, for the district of Virginia, prays that Aaron Burr, may be committed, upon the evidence now submitted. to the Judge, in order that he may be tried at the next Circuit Court Ior this disc;rict, or at a special court, to be held for the purpose, upon a charce of treason against the united. States, in setting a foot within the territory -~hereur, a military expedition, to be carried from thence, against the dominance of the King of Spain, w~th who~ the United States were then and are now at peace. Wickham countered the prosecution's argument for an indictment his client.

He said that the United States should he.ve positive proof

of an overt act.

Ho one c-:iuld prove that Burr wrote the letter a:id if

01'

ne aid write the letter, Wi.Lkinson either decoded it incorrectly or changed the neaning i'or nis benefit.

The defense also contended tnat

Burr's int.entions toward Spain were honorable since the United 0tates had expected a war with Spain.

i\.andolph declared ths t t,ie buats. \.lere 'to

be used on.Ly to move families anu thav any man in Burr's predicament 4 woula flee rrom mili'tary ana judicinl persecution. By April 1, 1807, John t.:arshall was ready to de.Liver his opi:nion on whether or not Aaron Burr would be bound uver ror trial. 'that because

01

He saia

the charges no prooi' was necessary to commit Burr buv

that proof must be furnished showing probable cause to believe Burr committed the crime.

Will:inson 1 s letter from Burr did give proof of

probable cause, but Harsha.Ll had misgivings about the letter. t~:at

pro.lI from tne letter would h&ve beer. more valid if the

copy had been based on

s~bmn tea

~wartwout's

alo::;g with vhe code.

He s3id. or~ginal

Also, since proof of treason

statement about the levying of troops could only

mean a future assembling of men, the strength of the statement lay on when the affidavit was made.

Furthemore, Harshall stated that an

asseri1bJagc to levy war should be a visible fact that the prosecution

15 could prove.

Rodney stated that he had no visible proof because

voluntary affidavits were hard to obtain.

Since no visible evidence

was submitted, Marshall committed Burr for misdemear:or only, but said that the prosecution could call for an indict::J.ent for high tree.son at the trial.

Hisdemeanor was bailable, so .burr 1 s tail was set at

;~10, 000. 00

and then he was ordered to appear Hay twenty-second, in the Circuit Court of the United States in Virginia.5 When :Marshall refused to charge Burr with treason, President Jefferson was absolutely furious.

The latter accused }~arshall and his

fellow Federalists oi' making the prisoner 1 G case their own and of causing anxiety in the public 1 s mind over whether or not t!::e prisoner was guilty of treason, because the necessary proof had not been furnished.

6

Jefferson then deterrnir.eci

to

dii'ect~the

trial from behind the scenes with Rodney as his representative, so that the goverrm1ent would not lose the case that the administration had made such a fuss over. :prove five overt acts:

Jefferson boped there\ly. to first, the enlistment of men to levy war;

secondly, the fortification of Blennerhassett 1 s island when goverrr:ient troops were expected; thirdly, the rendezvous of Burr with his ;:ien on Dece;:iber 22, 1806, on the Cunbcrland River; fourthly, burr's letter to Cowles Heade saying that the party of settlers would resist coercion; and fifthly, "his capitulation with the aids of the Governor, as between two independent and hostile cormnanders. 117

The Chief Executive

sent blank affidavits to Hay and speciried that those witnesses for the prosecutio:: who had a long way to come should be given money for their expenses.3

.

e~amine

Caesar Rodney was ordered to direct justices of the peace to

" of Burr I s d esigns. . 9 a 11 persons wh o ha d 'Know l eage

the trial was over the President had spent

~11,721.11

By tile time

of federal funds

to prove Burr 1 s guilt, none of w.i.1ich had been appropriated for this . 1 par t icu ar purpose. 10

16 On the day of the trial, Eay 22, 1507, Richmond was in; a frenzy of exciterr.ent.

At that time the population was about five thous
of visitors from all over the conntry were in the <::L,Y to see the trial. ·uhereas the m:iinority of these visitors were dressed in elec;ant attire, with silk knee breeches, ruffled 1:ilou.ses, and lon,:; coats, most of the men had on buckskin coats and wore homespun clothes.

The curious catie from '·•

the mountains, frCJT:1 tmms, from plantations, and from the frontier.

Where

inns, covered wagons, ano private homlis proved inadequate, tents served as their shelter durine the night.

All had come for one purpose--to

see either their enemy, or, as the case may be, theiri1hero tried for :breason.

11

The inquest was; held in the Hall of the Ha.use of Deleg<:ites of the Fifth Circuit and .District of ifir6inj.a at 12 :JO p. m. on Eay 22, 1007 1 with John Harshall and Cyrus Griffin, judge of the district, presiding. Crowded into the courtroom, along with the hundred or more the counselors for Burr and for the United States. consisted of Edmund Randolph, John and later Luther H<:irtin.

\~ickham,

sp~i;ators,

i.-1ere

Counsel for the cief'ense

Benjamin Botts, John Baker,

GeorGe Ha7, 1iho was e<:igcr and nervous, Hilliam

Wirt, and Alexm1de Hacltae, who was agi::;ressive and sarcastic, represented . d States. 12 the Unite

Almost before the trial began, the oefendant uas complaining abol't irregul3rities in the grand jury.

The court had struck out some jurors

and had inserted okers but Narshall said that the action of the court was not

2

violation ef the law and ordered the ,iurJ sworn in.

After

two contested jurors, William B. Jiles, who was already convinced of Burr's guilt, and Wilson Cary Nicholas, Fho had 'long born :mimosity toward the defendant, con0ented to withdraw, sb:teen freeholders, of Hhom fourteen were Republicans 2nd the other two Federalists, we1·e sworn ino

13

17 The jury consisted of:

John Randolph, a haughty man a.1d foreman of the

jury; John Eggleston, a member of Congress; John

c.

Campbell, brother

of the governor; Littleton l·Jalker Tazewell, member of the Virginia legislature; Robert Taylor, a lawyer; James Pleasar:ts, clerk of the Virginia House of Delegates; John Brockmbrough, cashier of the Bank of Virginia; William Daniel, member of the Senate; John i-:ercer, meuber of the Virginia legislature; and James H. Garnett, Edward Pegra.'11, Munford Beverly, John Amber, Thomas Iiarri:.::on, Alexander Shephard, and Ja.'iles Barbour.

14

After the jury was sworn in, George Ray moved to commit Aaron Burr on the charge 01' high treason on evidence forraerly given and testimony to be given.

The prosecution took this step because, although Burr was

charged with misdemeanor, he was 1'reed on bail.

A charge of treason

would keep the defendant from leaving the city :if Wilkinson cane to testify.

The defense objected on the grounds that Hay's motion took

them by surprise and because the effects of the procedure would be to i:lfluence public opinion against the defendant.

A legal battle then

ensued over the qel.estion of whether or not the court had the power to commit a person, and if the power was assured, did the authority apply in the case of treason.

Marshall said timt the power of the court

was implied and that the object of the commitment was not solely for bringing the prisoner berore the grand jury but also to subject him to the judgment of the law. 1 ) When the prisoner had been charged with treason, the defense stated that the charge of high treason must be proved by an overt act and also, the prosecution must prove that the accused participated in the overt act. The prosecution intended tu prove the charge by layi:ig down all the evidence in chronological order but Burr objected insisting that the

18 evidence must be admitted in a legal order.

Since tne prosecution's

star witness, James Wilkinson, had not arrived, George Hay desired to have Wilkinson's affidavit read and to have the oral testimony later. Defense objected because they desired to cross-examine Wilkinson. Since the affidavit did not prove an overt act, Harshall decided that the deposition was inadmissable as evidence at this pe:rticular time. However, Marshall did tell Hay that he could pursue the course, that he thought

b~st:,

ei tlier by oral o::c Jby C"-rb.i.:fiea af£idav:tts. Jfarshall did

qualify himself on the maLter 01' affidavits suyin;;; that depositior.s c0uid not be ad:nitted if the witness could be produced 2.::-:d any affida.vits adnitted must be authenticatect.

16

As the trial progressed, the deferldant decided that his letter to Wilkinson and the orders of ttc Departnents of iiar ar:d l!avy would Le of so:ne help in proving his innocence. subooena duces tecum be directed

AccordLgly, Burr asked that a

agains~

the .!:'resident.

'ft:.ll: sl'b'Jocr1n

would require Jefferson to appear before the court with the denired papers.

To save tine, Harshall suggested that Rociney pro6.L:ce the

documents but Hay questioned whether Burr had a right to the use of the subnoena and ii" he did, c0ulu tbe President be made to brbg the letter and orders.

Since thu

prosecu~1un

was not sure that .curr' s c'i.e::1and 'Was

legal, they decided tliat in;:;tead or producir:g the oric;inal letter, copies would suffice.

Randolph in turn argued that if a copy of the letter

was presented, ;·!ilkinson might deny that he had received the letter 1·rom Burr.

Prosecution argued that tl1e original letter might contain personal

parts that should not be shown.

17

On June thirteenth, John Harshall gave his famous opinion on the subpoena.

He said that the question before the court was whether or not

a subpoena duces

~

could be issuc:d to the President by the prisoner,

19 and, if' so, could Jefferson be made to bring the papers with him. Marshall said that Burr could issue a subpoena because 1 according to the Constitution,the accused had a right to a speedy trial ar:d to witnesses in his behalf.

Also, the accused was entitled to all processes of law

before the indictment was found.

18

Since Harshall was the chief

authority on the view that the President was subject to the processes .. d of 1aw, h e directed the su b poena ~

~

' to Je fierson.

19

. Illogically the

Chief Justice said that no OYle ever questioned t!"le idea that the President could be called to testify, since he was elected by the people; therefore, the prosectJ.tion should not object to the idec. of asking the President to bring papers with him.

20

If Jefferson was too busy to

attend, work was a reason for disobeying the court, not for refusing 21 to iss
H~

:aay

:22

that he would

said that private 5overnment documents

should not have indiscriminate inspection and that the court was fi.Cfrc'J.1nus to say that the President cou.ld be taken away from his work !'or any trivial business. the

23

su.~ons

Jefferson asked Hay if he could be punished for disobeying and also reiterated his former ste:.tement sc_ying that the

President was concerned about the welfare of a million people and could not be taken away from official duties ror just one of then. 24

Jt'inally,

Jefferson did relent and sent the paper::; to the court but only with the stipulatio:l that the personal parts be removed.

25

After r-:arshall gave t!w decision of the subpoena, Dr. Eric Bollman was called to the witness box.

Ti1e witness, a foreigner and one oi' the

defendants in the case of Boll'llan and S-wartwout, had previously tried to correct a statement made about an assemblage of two thousand men. in the West.

20

Jefferson told him to write the true statement down, promisinG the doctor th2t the paper would never got out of the sovernment's hands or Lie used against him (Dr. Bollman) in any way.

After the statement was vn•i tten

the Chief Executive transferred the dd.cument to Hay in H.ichmond uith instructions to pardon Bollman if he woruld testify for t'rn prosecution. 26 When Bollman took the stand, he refused to accept the pardon.

lfarshnll

would not let the prosecution send Bollman beftire the Grand jury until the court found out thelralidity of the pardon.

If the doctor refused the

pardon, he could not be made to testify, there Ly incrir.iinating himself, but if Bollman accepted the pardon, the court would have to ponder the question.

Therefore, Harshall sent Bollman before the granrl. juF.f ui tr~out

any particular direction.

27

Finally, the long awaited star witness for r,he prosecution, Jar:jes Wilkinson, arrived on Eonday, June 15, 1807.

28

After his arrival,

Wilkinson was sworn in and sent to the grcond jur;.

Immediately, counsel

for defense asked that censor be brought against Wilkinson because of the force used to brin.:; witnesses to t8stify.

Defense said -chat the

T:litness caused the arrest and imprisonr1ent of Janes 11.nox in urder to compel Knox to testify, whereas, the prosecution said tlwt the orders to convey the prisoner to P..ichrnond were the nets of a Judge Hall. basis of the ing_frmation given, no censor

"HRS pl~ced

On the

upon Hilkinson since

he could not cintrol or influence the acts of a civil magistrate.

29

v

After considering the ecidence, especiall,:r Bnrr 1 s lette!', on 1.'lednesday, June 24, ltl07, the

~r;md jury

found two true tills against

Aaron Burr, inoj.cting him for high tl·eason and misdemeanor. ment was r::adc hecause Marshall's

de::-~inition

Bollman and Swarb-rout was unclear. were principals and that an

The indict-

of treaso:l in the c:ase of

'.the jury tbou;_;ht that in treason all

asser~:blage

even uithont force uas treasonable.

JO

21 Harshall

h~d

stated previously thatche hoped to take the decision that in

treason all are principals before the Supreme Court to see if the statement could be reversed. When the jury had been dismissed, Harshall coMnitted llurr to the city jail to

W3U

for his trial in August.

Burr 1 s counsel objected to

confinement tin the on the ground that the jaj_l woulc..1 be injurious to their client 1 s health.

The defense hoped to place :2·urr under :;u8rd in

Luther Ea rt in 1 s house but the court gave .hurr three rooms on the third floor of the penitentiary

.3 1

CHAPTER Ill 'l'RlAL BEJ!'ORE THE PETIT JURY

un August 3,

.l~u'/,

the t.ria.L ror treason began in the circuit

court u1 the United States for the Fifth liircuit. ana Virginia IJist.rict. with the judges ana counsels ror the prosecut.ion and aetense the same as in the previous inquest.

The indictment read that Aaron Burr had

levied war and rebelled against the United States of America on December 10,

1~06,

at Blennerhassett 1 s is.Land in the county o1' wood

and District of Virginia in the jurisdiction of the court of Virginia • .L Almost immediately a batt.Le over prospective jurors began which lasted two weeks.

Juror a!ter jurur was reJected because he had

1·ormed an opinion or the prisoner rrom the newspapers or from a 1·riend. Eventu~ly

the defense suggested that they be permitted to choose

any one or the pane.L or jurors that they desired.

when permission was

granted, Burr's counselors proceeded, as an avowal or their clien't 1 S innocence, to choose those men most hostile t.o Burr, thereby appealing to each juror's honor.

2

The jurors chosen were Edward Carrington, the

foreman, David Lambert, Richard

c•

.Parker, Hugh Mercer, Christopher

Anthuny, James Shepherd, Reuben Blakey, Benjamin Graves, Mi.Les Botts, 3 Henry Co.Leman, John M. Sheppard, ana Richard Curd. A1'ter the jury was sworn in, the prosecution proceeded to make their main points about the case according to their interpretation or the Constitution.

In Article III, Section 3, the Constitution states that

"treason against the United States shall consist on.Ly in levying war against them, or in adhering to their enemies, giving them aid and. comfort" and that "no person shall be convicted of treason unless on the testimony of two witnesses to

~he

same overt act, or in confession in open court."4

22

23 The prosecution said that accordini_; to the Constitution, arus were not a necessar"Jine;redient to t:iommitting a treasonable act. Testimony ' vrould prove that Durr devised a treasonabl: plan and had an asser:1blage of men and supplies to effect the plan.

Witn8sses would show that the

defendant invaded Spanish territory ancl tried to divide the Union to establish an independent country.5

j_n

order

Also, the prosecution interpreted

the Constitution to say that if a ·war was actually le'ried, any person who had a pDrt in the considered a traitor.

conspi~acy,

however remote f:Dor;i the action, Has

6

Only by interpretingfr,he Constitution accordini; to the doctr::.ne of constructive treason could Aaron Burr have been a participant in the overt act of levying wat.

The doctrine of constructive treason stated

that in treason all are principles and that, in adherence to the law, Burr was present even though in realitl! he may have been hundreds of miles away.

The supposed traitor was not on Dlennerhassett's island at the

time of the overt act but uas two hundred r1iles airny.

7 'I'he prosecut5. on

readily admitted that they were trying to convict Burr on connection with the overt act rather than on physical presence.

Hillinm Hirt

said: 1/

We are endeavoring to nake the accused a traitor bu conn0ction, by st:;ting the act which uas done, and 11hich act, frou his conduct in the transadions he made his o;m, that it is sufficient to nake this charge generally not only because it is authorized 'by the constitutional definition, •'l'.t because it is cor1fortable to raodern eases, in ~Thic8 the indictments are pruned of all ·unnecessary luxuriances o After the preliminary remarks of Hay, t:ie lon3 line of witnesses v

for the prosicution cegan. to the stand.

~"irst,

Ueneral William

~ton

was called

He said that he knew nothing of t.he overt act but much

about the prisoner's treasonable intents.

The defense objected to any

24 testimony proving intent before the overt act had been proved. 9 :Harshall said that evidence of intention could be given if the evidence to the acts in the indictment.

The Chief Justice ruled,

11

~pplied

that the

witness might testify as to Burr 1 s intentions to commit the particular acts specifically set forth in the indictment, but that no testirr.ony of general treasonable designs would be received--a distinction with a difference which was to prove increasll1gly important as the case proceeded. 11

10

When Eaton resumed his testimony, he ssid that in 1805

Burr had organized an expedition against Spain, in which the witness had also been a part.

However, Eaton began later to suspect Burr of

treasonable designs and repudiated the plot.

11

Following Eaton 1 s testimony for the prosecution, the counsel for the defense cross-examined him.

They asked Eaton why he denounced

the plot to Congress but not to the President.

Burr asked the witness

if Congress paid him the money that he was s11pposed to receive from the Barbery State exploits afterihe prosecution persuaded him to testify.

Also, the defense tried to invalidate Eaton's testimony on

the grounds that he had once received a court martial and was therefore an unfit witness.

At the conclusion of this line of questionll1g, . 12 the witness was completely discredited. After the disgraced Eaton stepped

do~m

fron the witness box, the

prosecution called Conmodore Truxtun to the stm d. he knew nothing about a plot to invade New Orleans.

Truxtun s<:iid that He knew only about

the settlement of lands, the building of boats, the digging of canals and the invasion of Hexico.

Furthermore, the witness told the court

that the defendant had said that Wilkinson he (Burr) matured the plans.

formulate~.

the plot

wh~reas

Burr also told the Commodore that an

25 invasion of lfoxico depended on a war with Spain. 13

Not only did

Truxtun not help the prosecutions case but he gave more impetus to the idea of Burr•s innocence. Following 'rruxtun 1 s testir.iony came a bevy of witnesses for the United States. an overt act.

Host of these men disproved, or at least failecl to prove, 'l'he first of the witnesses was Peter Taylor i7ho said

that he heard from a .friend about Burr enlisting the aid of younG men with rifles for an expedition to Hexico.

Taylor stated that he

was on Blennerhassett 1 s island when the men left and thnt Burr uas not among the men; in fact, he had never even seen Burr.

14

Next

Colonel George Horgan, a long time political enemy of the defendant, took the stand.

He tes t,ified that he and burr had held a conversation in

which Burr had stated that in less than five year,s the land west of the Allegheny would be separated from the Atlantic because uf the weakness of the central government. dissatisfation

15

Although this testimo:ty shoued Burr• s

with the government, the stc;tement did not µrove an overt act.

After Eorgan testified, Jacob Allbright, a worker on the island, came to the stand to prove an assemblage of men.

He did say that tuenty or

thirty men were on the i5land but none of the men had bayonets.

Since

Allbright went to bed he was unable to see any boats leave the island, if boats did leave the island. 16 of the

~-1itnesses

Supposedly, the 1-10rker was the only one

to testify to an overt act.

Ile stcited under oath that

nhen a General 'i?upper went to the island to arrest Herman Blennerhassett, the General 1 s life was put in danger and he was forced to lead Blennerhassett to safety.

Later in the trial Tupper Jenied this statement.

·when Allbright stepped doim, John Graham was called to the stand. Graham testified that ooth he and Burr believed that the

17

26 West would benefit by a separation from the rest of the country but that the section was not ready for a divisiono

18

None of these men,

except perhaps Allbright, helped the prosecution in any way. Finally, after all other witnesses for the prosecution had testified, General Wilkinson took the stand.

Wilkinson also stated that he knew

nothing about the overt act itself but that he did have the cyphered letter and communications from Burr which would incriminate the defendant. Then Wilkinson said that he put New Orleans under martial law because Burr asked about provisions in the city and the General was afraid that New Orleans would be attacked.

Returning to the matter of the cyphered

letter, Wilkinson said the letter, which he understood because of previous comrnunications with Burr, proved beyond any doubt that the defendant was guilty of treason.

Actually, the letter did not say a

word about invading any part of the United States.

v!hen asked if he

had orders from the President to sieze Burr, Wilkinson said that he had no such orders.

Later in the testimony, the witness said that the

administration had ordered the

~rrest 1 but

Wilkinson refused to show the

order on the grounds that that paper was both public and private. Marshall said that in this case producing the order was not necessary. After Narshall said the order need not be produced, Wilkinson again contradicted himself saying that tr.e order for the prisoner's arrest had originated with the Secretary of War.

.At 'tli:ls·point, the defense

pointed out the inconsistmcie·s in the witness 1 s report, saying that Wilkinson must have

p~rj ured

himself while he was being examinect. 19

When tbese accusations were heard by the spectators and by the jl..lr'J, Wilkinson's testimony, although not completely discredited, was looked upon with suspicion.

27 D'.iring Wilkinson 1 s testimony and for many yeats later, two men who believed tha-ijaeneral Wilkinson was guilty of treachery anci perjury, were trying tcjProve Wilkinson's guilt to the administration and the public. John Randolph, foreman of the jury, was one of the men who uas trying to gather information of the General's corruption.

He turned to Daniel

Clark, a former friend of ',iilkinson, for knowledge concerning the General's actions.

Clark Said that he had proof that the Spanish under

Niv-o ap;iroached Wilkinson about a Spanish invasion of American territory with Wilkinson's aid.

'I'o induce

~dilkinson

to him the leadership of the new country.

20

/'

to help, biro offered

The Ueneral was knolm to

be agent number thirteen on the record of foreign affairs at Hadrid. Randolph also found out that the star witness was a S_panish pensionAr from 1787 to ld07 and was a leade~of the Kentucky secessionist movement, in 1796.

21

Wilkinson accused Randolph of

he went and of turning life

l~ng

persecutin~

him wherever

friends, such as Clark, into enemies.

22

Under such dubious testimony, Wilkinson's statements rRise doubts on his integrity.

If Burr was a traitor, Wilkinson uas also an enewy of the

people. After the testimony of Genera 1 i:Jilkinson, both the proS.ecutors and the defenders began to sum up the aain points in their respective casss.

Edmund .dandolph refuted the doctrine of constructive treason.

Burr coula not be a principle even if he was an accessory because the Constitution did not speoitY that in tre23on,iall cire principles.

The

defense maintained that no precedent conld be drawn :from the case of Bollman and Swartwout since nLlitary force was not used in their Activities.

In surr1ming up, Wickham said that the Constitution spoke

of treason only in the

lev.rin~

of war; therefore, the prisoner could not

23 be convicted since no overt act had been proved by the prosecution.

28 Following the concluding remark made by Wickham, Wirt tried to negate all the statements made by the defense.

He said that since the

case of Bollman and Swartwout was on the government's side, the defense tried to deny that it had any bearing on the case at hand.

The question

of whether the prisoner's presence on the island was needed to make Burr a principal of the overt act of war should be left to the jury.

24

Force could mean an assembled body but force did not need to be proved when intent could be demonstrated by separate evidence.

20

In his closing

remark Wirt said, "Who then is Aaron Burr, and what the part which he has borne in this transaction? active executor. 11

He is its auth?r; its projector; its

26 •

When Wirt suggested that the prosecution hoped to have more testimony to prove the overt act, the defense moved

~hat

~o

since

overt act had

been proved, any evidence of intention to commit an overt act was inadmissable.

The defense stated four main reasons for the exclusion of evidence:

.first, since Burr was not present at Blennerhassett 1 s

isl~md,

he was

an accessory and not punishable; secondly, if he was a principal, he was a principal in the second degree and therefore the prosecution must first convict the principals of the first degree; thirdly, the fact must be proved as -laTd; meaning that since the prosecution charged the prisoner with levying war on Blennerhassett 1 s island, evidence that did not prove the overt act on the island was inadmissable; fourthly, an assemblage was not an act of treason.

21

George Hay was furious with the c::ttempt of the defense to exclude new evidence to prove intent.

He said that the defense was trying to

deny justice by keeping facts hidden from the jury.

Even though Burr

was an accessory or a principal in the second degree, the prosecution charged

hi~

with levying war and therefore hnd the right to introduce

29 all the evidence, and then to call upon the jury to decide from the 28 evidence Burr 1 s guilt or innocence. Hay threatened to impeach Marshall if he excluded any evidence.29 On August 31, 1807, John Marshall delivered the opinion of the court on whether or not Burr was guilty of committing treason at Blennerhassett 1 s island.

Marshall began with a definition of the

levying of wa11 and of who could be accused of levying war.

Harshall,

in his interpretation of the Constitution, declared that levying war is raising or creating war, but the definition was further extended to mean making or carrying on war.

Since levying war meant using a

part of the military force, force must exist or a man could not commit a crime of treason.

Anyone who performed a part in war, levied ua r,

but performing a part did not include persons who counseled or failed to perform their part.

The principal of constructive treason, stating

that whatever makes a man an accessory makes a man a principal, did not apply in this case.

Harshall said that he would take the decision

in the case of Bollman and Swartwout, stating that in a conspiracy all those involved are traitors, before the Supreme

Court.j~

After defining war and people involved, Narshall stated tr:at conspiracy to levy war against the United States was not ireasonable unless put into execution.

Only force connected with a conspiracy

was an act of levying war.

Harshall 1 s idea of conspiracy was not

overturned in the case of Bollman and Swartwout because no declaration was made to the effect that any assemblage of men constituted a levying of war.

3J)

In Marshall's opinion, conspiracy to levy war was not treason.

Upon concluding the court 1 s ideas on conspiracy, Harshall went on to explain assemblage and the use of force in an assemblage.

When the

30 court said that a design to overthrow the United States government in New Orleans was treasonable, the judge meant to convey the necessity of an assemblage of rren, with force as a part of the assemblage.

One

oifl the questions to be asked was whether or not Burr had advanced

so far in levying an army as to have assembled than with force.

Hen

need to assemble and meet at a rendezvous point, but the act of traveliIJ.6 to the point and meeting had no warlike appearance.

The

hh!i

Supreme Courtv'said that an assemblage of men with force was war; therefore, 32.

force is an indispensable ingredient in war. :instruct the jury that

11 •••

The court would like to

unless an assemblage on Blennerhassett 1 s

island was an assemblage in force ••• it was not a levying of war. 11

332

Following his statement on force and assemblage, the Chief Justice began his opinion on the indictment.

Since the indictment charged the

prisoner with leV"Jing war on Blennerhassett 1 s island, and did not contain any other overt act, no proof could be submitted that the W!.lr was levied on the island by another Tr!an taking Burr's place.

Even

if the indictment could be supported by such evidence, the conviction v of people who committed the act was inadmissable to the conviction of a person 'Who supposedly advised or procured the act.

Since the prose-

cution admitted that Burr was nowhere near the area when the 1wert y

act occured, the question was asked whether the indictrr.ent must

speci~

the place of the overt act or whether the prisoner coulri be charged with levying war without reference to the place.

Harshall said the

place of the overt act was essential to the indictment; therefore, under no circumstances could the prisoner be charged as legally although not physically present.

If a man was legally absent from

the place of the overt act but had procured or commissioned the

t~easonable

31 act, the prosecution must indict him as being absent in order to be able to prosecute the prisoner for being legally present.

In the Burr

case, the indictment was levying war at Blennerhassett's island; therefore, the prisoner could be convicted only on proof of the overt act as laid in the indictment.34 In connection with the opinion that only evidence proving the indictment could be given, Marshall said that the prosecution controverted his opinion on two grounds:

first, that the indictment did not say

that the prisoner was physically present on Blennerhnssett's island; and secondly, that even though Burr was absent he caused the assemblage and therefore should be convicted on evidence proving that he caused the acts.

In answering these charges, the Chief Justice said that he

understood from the indictment that Burr was a part of the assemblaGe• Also, to counsel and to assemble were two different acts. 35 Marshall then made one of the tr.a in points of the court• s opinion. He said that an overt act mest be proved by two witnesses.

If the

accused procured an assemblage at Blennerhassett 1 s island and then took part in an overt act, the prosecution must prove the act by the testimony of two witnesses, which George Hay and the other prosecutors had been unable to do.

In common law the prisoner w,mld be euilty if

11

had advised the act but corrmon law was not a statue law so it did not apply in the Burr case, although the prosecution probably could p:ruve with two witnesses that Burr advised the a ct.

The p:rusec 1tion must 1

prove the part played by Burr, even the sr.!allest part, with two witnesses. Marshall said that a misunderstanding had arisen about the difference between an accessory and a principal.

Those men who assembled were

principals whereas these who caused the assemblage wsre accessories.

36

32 Accessories are not guiltier than the principals; therefore, the prosecution must prove the guilt of the principals first.

Burr's

guilt relied on the degree of guilt attached to the act performed by others.

Reiterating, Marshall said that no man could be an accessory

unless an overt act, proved by two witnesses, was proved. 3f1 Finally Marshall finished delivering the opinion of the court on the Burr case.

The Chief Justice then ir.structed the jury to retire

and to return the verdict, since no further evidence had been given to prove the overt act.

Colonel Carrington delivered the opinion of

the jury saying, "We of the jury say that Aaron Burr is not proved to be i;uilty under any indictment by any evidence submitted to us.

We

therefore find him not guilty. 1138 Marshall ordered the scotch or not proved verdict to be entered on the court records.39 Aaron Burr was acquitted of treason but he was ordered to stand trial on the charge of misdemeanor.

The trial for misdemeanor was

more of an attempt to gather evidence for Harshall's impeachment, although no evidence was found.

The inquest dragged on for seven

weeks and again the jury acquitted the prisoner but this

ti~e

with a

straight verdict.46 Burr was committed to Ohio to stand trial for . . t preparing an expe d•t• i ion agains

spain. . 4~

CHAPTER J.V SUNJv.:ARY ~GT'ith •~f...1

By the end of the trial, the J :..re of one man, Aaron Burr, had been destroyed, and the administration was still trying to ruin the career of another, John Marshall.

After the trial Burr escaped to Europe,

whereas the Chief Justice remained to face the criticism and anger of the country.

The defense said that the scotch verdict should not

have been allowed to stand, whereas the prosecution accused Marshall of withholding testimony.

The Chief Justice was burned in effig
threatened with impeachment by some of the members of Congress, such as Senator Giles of Virginia • 1 William Thomson, who wrote a view of the trial, said that Marshall abandoned the principle of constructive t reason so essential to the safety of the peop1e. 2

.Je f ferson accused

the Chief Justice of being a monarchist and of tr-;ing to overrun the Unbn.3

The President also denounced Mar8hall as a 1'mounteback, a

trickster, a corrupt judge, and worthy of impeachment. 11 4 The administration even went so far as to ask for a bill to define treason. Senator Giles introduced into Congress this bill i-!1ich provided for the punishment of persons for treason although not physically present at the overt act and included in the bill all those who forcibly resisted the execution of the law.

Fortunately, after the bill passed in the Senate,

the House of Representatives voted it down.5 In addition to casting the blame for the outcome of the case on John Harshall, the trial created two precedcnts--one for future

33

34 presidents who are subpoenaed and one for future decisions the nature of treason.

concernin~

President Jefferson refused to obey a subpoena

issued to him by John Marshall, thereby creating one of the precedentso The Chief i;;xecutive believed in a complete separation between the powers of the executive, judicial and legislative branches of the government.

He also believed that an error had been made in forming

the judiciary as an independent body and hoped that a constitutional amendment would change this situation.

6

Because Jefferson did believe

in: a separation of powers and did have some ill feeling towards the judiciary, he refused t0 go to court when Har shall issued the subpoena although the desired papers were sent on Burr 1 s behalf. the

s_u[)p~_E)~a

Jefferson said,

11

In rejecting

The leading principle of our Constitution

is the independence of the Legislature, executive, and judiciary of each •••• But would the executive, be independent of the judiciary, i f he were subject to the commands of the latter, & to

imprison~ent

for disobedience ••••

Since Earshall did say that business was a reirnon for disobey'tng the court• s subpoena, Jefferson said that he hoped that the court
8

The Chief E.."{ecutive lmew that

he had no prerogative in disobeying the subpoena, but, at the same time, he did not want to obey the court

bec~mse

by obeying he would make

the executive subordinate to the judiciar;y and would also create a precedent for future presidents. The other precedent formed was the decision to judge trPason according to a strict constructionist view of the Constitution. John Narshall once said that the court would not usurp power, nor would it shrink from its duties.9

In forming his opinions about the

35 law of treason the Chief Justice did not vary from this point.

Since

treason was defined in the Jeffersonian view of strict construction :of treas the Chief

E.;,·~i.:fi.'l'!.

should have had no reason to object to the procedures

used in the trial.

In following the Constitution, Marshall rejected

the essential feature of the Common Law whereby only legal presence was necessary at the scene of the overt act.

He said that a man was

a traitor only if involved in an overt act as a principa1.

10

In rejecting the Common Law some authorities, such as iliward Corwin, arGued that Marshall formed some questionable decisions at the Burr trial.

Corwin said that in the case of Bollman and Swartwout

versus the United States, J.Ia rshall adhered to the Corar::on Law since the outcome of this case stated that in treason all are principals.

Corwin

ignored the fact that Harshall insisted tl'.at he would take this decision before

tre

Supreme Court.

Harshall is accused of taking a

stricter view of the treason than even the Constitution because he insisted that an overt act must be proved by two witnesses and that the act must be a personal act.

Opponents of Harshall 's interpretation

of the Constitution argue that the document does not require two witnesses to a personal overt act but two witnesses to an act of treason to which the accused may be linkect. 11 Other authorities, such as Robert K. Faulkner, argue that Harshall did interpret the Constitution correctly.

The Constitution did not

specify that all people involved in an overt act are principals. If the Constitution was interpreted to mean that all were principals then the interpretation would be opposed to the aims of the framers of the Constitution.

The authors desired treason to be defined in a

limited sense so that treas on could not be used in dol"lest ic quarrels.

36 They said that too many heads had been chopped off in the name of treason in Great Britain.

Therefore, John Harshall articulated the

true spirit of the Constitution when he rejected the doctrine of constructive treason. 12 The Aaron Burr trial was not a victoryfbr either Burr or for the United States.

Both sides won sorr.ething and both lost something.

The

defense succeeded in getting their client acquitted of the charge of treason, but the stigma of guilt still hung over Burr's head.

The

prosecution was not able to convice Burr of treason but they were able to put doubt in the nation's mind as to Burr's innocence. The Burr trial went down in history as a compromise between Burr and the United States.

37 FOOTNO l ES.. 1

CHAPTill

1

1. Dumas Malone, Jefferson and the Ordeal of Liberty (Jefferson and His Time, III, Boston, 1962), 494w 2. Issac Jenkinson, Aaron Burr, His Personal and Pol:b.tical Relations with Thomas Jefferson and Alexander Hamilton (Cleveland, 1908), 68.

;3. Ha lone, Ordeal of Liberty, 496-497, 500.

4. 5.

Jenkinson, Personal and Political Helations, 101. Albert J erer.iiah Beveridge, Life of John Harsr•all (Boston, 1916-

1919), 227, 228-229.

6.

~.,

268.

7. William Thomson, A Compendious View of the Trial of Aaron Burr (Richmond, 1807), 10.

B. Henry s. Randall, 'l'he Life of Thomas Jefferson (Hew York, 1858), III, 167-168. l{ll. Samuel Henry Wendell, Aaron Furr (New York, 1927), 11, 39. :_9~· Beveridge, John Harshall, III, 281-282.

11. Beveridge, John Harshall, EI, 2%-2%, Halter Flavivs HcCaleb, The Aaron Burr Conspiracy, 3 ed. (iJew York, 1966), 42. 12.~

NcCaleb, Burr Conspiracy, 76.

13. Wendell, Aaron Burr, II, 360

14.

~.,

54.

15. Beveridge, John Harshall,

:rn,

303.

16. Henry Adams, History of t're United States (Hew York, 1890), II, 22lo

17. William Harrison Safford, The BlennerhGs0ett Papers (Cincinnati, 1891)' 172.

18. Wendell, Aaron Burr, II, 69. 19. Safford, Blennerhassett, 156. 20. Wendell, Aaron Burr, II, 71;

Beveridc;e, John Farshall, III, 297.

21. Jenkinson, Personal Political Relations, 179-lSG.

38 22. Richmond Enquirer, January 31, E\07; 304-305.

Beveridge, John Harsh?ll, III

23. Jenkinson, Personal and Political 1lelations, 175, lG0-182. 24. Wendell, Aaron Furr, II, 102-105.

25.

General James "ilkinson, uenoirs of Hy Oun 'fines (fhiladelphia, 1816), I, 1~17.

26. Jenkinson, Personal and Political 1~elations, 187-190; View of the 'l'rialz. 15.

Thomson,

27 .HcCaleb, Burr Conspirac:z:, 68-70. 28. Wendell, Aaron Burr, II, 115. 29. Thomson, View of the Trial, 19, 25. 30. Jenkinson, Personal and Political Helations,218-219. 31. Beveridge, ,fohn harshall, I.LL, 331-332, 3Jln-332n; Hendelb Aaron imrr ,II,132. 32.'. 111Rurr 1 s Conspiracy," Annals of Congress, 9 Cong., (December 1, 1806-1'1archJ3, 1007), 39,46.

~

stlss.

33. Wendell, Aaron Burr, II, 160-161; Beveridge, John Harshall,III, 362-364. 34. Beveridge, John r!arshall, III, 365-366;

Thomson, View of the Trial,

35. Richmond Enquirer, February 27, 1B07. 36. Thomson, View of the Trial, 22. 37. Johm Harshall, '1.'he Constitutional Decisions of John Harshall., ~oseoh P. Cotton, Jr., ed. (Heu York, 1905), I, 126. 38. Beveridge, ,John Har shall, III, 350.

39. Thomson, View of the Trial, 22. 40. Wendell, Aaron burr, II, 168-170; Hattheu Livint;ston Davis, Hemoirs of Aaron hurr (Hew York, 1836-1838), II, 383.

41.

Beverid_:;e, John ilarshall, III, 367-368.

c.rrAP'.i.'...:..?.. II

lLDavid Rol.Jertson, .Reports of the 'i'ria~of Colonel Aaron Burr, for Treason and a Llisdemeanor in the Circuit Court of the United Stat~s (Philadelphia, ldo8), I, 1-2. 2o Ibid., I,

3-4; Thomson, View of the. Trial, 590

46.

39 3. ~·' 56-57.

4, 5.

Robertson, Reports of the Trials, I,

4-5.

Ibid., 12, 16-20.

6. Thomas Jefferson, The Writinr:;s of Thor:ias Jefferson, Paul Leicester Ford, ed. (New York, fo92-1899), IX, 4~.

7.

Ibido,

43-44.•

8.

Ibid.,

42;

VJendell, ~aron Jjurr, II, 189.

9. Beveridge, John l·iarshall, III, 390. ~telations,

10. Jenkinson, Personal and Politicnl

282.

11. Beveridge, John l·!arshall, III, 398-400. 12. Thomson, View of the Trial, 74.

13. Ibid., 74-75; nobertson, .:\.eportsiOf the Trials, I, 39. 14. Thomson, View of the Trial, 76-77. 15. Ibid., 79-f:30; Robertson, l?.e,·.orts of the l'rials, I, 76-t.lO.

16. fl.obertson, Reports of the Trialfi, I, 82, of the Trial,

81-82.

B5, 92-97;

Thomson, ·view

17 ~ .Lio-oertson, J.eports of the Trials, I, 114-122, 141-159.

18.

The Trial of Aaron burr, 11 Annals of Con4rcss, 10 Cong., l sess. (October 26, 1807-April 25, 1808), 693; nobertson, ~•eports of the Trials, I, 179-lBg. 11

19. John Edward Oster, The Politir,al and economic Doctrines of John !·.:arshall (Hew York, 1914), 301. 20. Robertson, P.eports of the :'rfals, I, 181. 21. "The

~tial

of .A.aron Burr," Annals of Con:1 ress, 10

22. Oster, Political and

~conomic ~octrines~

Con~.,

1 scss., 697.

302.

23. Hendell, Aaron Burr, II, 193.

n:, ,60.

24.

'Je£fersoi:i~ Paper.s,

25.

Robertson, Reports of the Trials,

:r:;:, 253.

26. Jenkinson, Personal and Political Eelations, 285.; Harshall. III, 391-392.

Beveridge,~

40 27. Robertson, Reports of the Trials, I, 190-196. 28.

Ibid., 199.

29.

Thomson, View of the Trial, 102-111.i..

30.

Robertson, Reports of the Trials, I, 306.

31.

11

The Trial of Aaron Burr, 11 Annals of Congress, 10 Cong., 1 sess!.,

389-391. CHAPTEB. III

1. Thomson, View of the Trial, 126. 2.

Frederick Trevor Hill, Decisive Battles of the Law (New York,

1907), 42-43.

3. W. Asbury Christian, Richmond, Her Past and Present (H.ichmond,

1912)' 67.

4. 5.

Thomson, View of the Trial, 131-132.

6.

Robertson, Reports on the Trials, I,

7.

Beveridge, John Marshall, III, 493.

8.

Ibid., 496.

John Marshall, Constitutional Decisions, I, 97-98.

448.

Robertson, Renorts of the ?rials, I, h73.

10. Hill, Decisive Battles, 47. 11.

Ibid.'

12.

Ibid., 48-50. --

13.

11

48.

Toe Trial of Aaron Burr, 11 Annals of Congress, 10 Cong., 1 sess.,

410-42. 14. Robertson, Reports of the Trials, I, 49h-497 o

15.

11

The '.!.'rial of .Aar?n Burr," Annals of Congress, 10 Cong., 1 sess.,

114S-

426pL:37o ·:::r;.J')JcJ.

J

/ffJ.S ~'f~1., 'f3t·

Wendell, Aaron Burr, II, 208.

16'.

"The Trial of Aaron Burr, 11 lmnals of Congress, 10 Cons., 1 sess.,

494.

1-fjl ..>

41 2D.

Wendell, Aaron Burr, II, 5-6.

2;!_.

Beveridge, John Marshall, III, 283. Wilkinson, Hemoirs, II, 7. Robertson, Reports of the Trials, II, 3-31. William Wirt, The Two Principle Arguments of William Hirt (iiichmond, 1808), 11, 15, 29.

2ti.

Robertson, Re:eorts of the Trials, II, 109-117.

26.

Wirt, Two Principle Argument::;, 61.

2q.

Robertson, ReEorts of the Trials, II, 197.

2~.

Ibid., 200, 221.

29.

Beveridge, John Marshall, III, 500. Marshall, Constitutional Decisions, I, 102, 111.

3rl..

Ibid., 124-126.

J2.

Ibid., 129-138.

33.

Ibid., 139.

3~.

Ibid., 141-150.

Jo.

Ibid., 156-1.57.

3[;.

Ibid., 165-169.

3~.

~.,

3TI.

Hill, Decisive Battles, 61.

39.

Ibid.

l~O·

Beveridge, John Ifarshall, 516-517, 522.

170-173.

40.• Robertson, Reports of the Trials, II, 539. CHAPTI;;R IV

1.

Beveridge, John Marshall, III, 536.

2.

Thomson, View of the Trial, 1.50.

J.

Beveridge, John Narshall, III, 388.

42 4.

Jenkinson, Persona 1 and Political Relations,

5.

Carl Brent Swisher, American Constitutional Developments (Boston, 1943)' 130-131.

6. Jefferson, Papers, IX, 7.

Ibid., 60.

8.

Ibid.,

294.

46.

57.

9. Y.tarshall, Constitutional

Decisior~,

I, 179.

10~

Edward Samual Corwin, John Marshall and the Constitution (New Haven, 1919), 106.

11.

Robert K. Faulkner, 11 John Harshall and the Burr Trial," The Journal of American History (September, 1966) ,LIII, 247-249.

12.

Ibid.,

250-253.

43 BIBLIOGRAPHY PRilIARY SOURCES

1.

"Burr's Conspiracy, 11 Annals of Congress, 9 Cong., 2 sess. (December 1, 1806-March 3, 1807).

2.

"The Trial of Aaron Burr, 11 Annals of Congress, 10 Cong., 1 sess. (Octobert 26, 1807-April 25, 1808). The Annals of Congress contain the proceedings of the Aaron Burr Trial. The book was very good reference material.

J.

Clark, Daniel, Proof of the Corruption of General James Wilkinson and of His Connexion with Aaron Burr. Philadelphia, 1809.

4.

Davis, Matthew L., Hemoirs of Aaron Burr. 1836-1838.

2 v.

lJe~v

York,

Burr's memoirs do not contain much source material about the trial. The book is concerned mostly with Burr 1 s personal affairs.

5.

Jefferson, Thomas, The Hritings of 1'hol/Jas Jefferson. Leicester Ford, ed. 10 v. New York, lS92-ltl99.

Paul

The 'Writings of Jefferson were most helpful in getting Jefferson 1 s opinion of Harshall, of Burr, and of the trial. This book was especially useful in expldining Jefferson's view on the subpoena.

6.

Narshall, John, The Constitutional Decisions of John Marshall. Joseph P. Cotton, Jr., ed. 2 v. New York, 1905. This book gave all of Marshall's opinions on the Burr trial. The book was one the best sources that was used for the paper.

7. Robertson, David, Reports of the Trials of Colonel Aaron Burr, for Treason and a Misdemeanor in the Circuit Court of the United States. 2 v. Philadelphia, 1808. David Robertson was the stenographer at the Burr trial. His report is inclusive and the facts seem to be correct. The book is very good source material for the trial itself.

8.

Safford, William Harrison, The Blennerhassett Papers.

Cincinnati, 1891.

This book is not very good source material since it deals primarily with Blennerhassett 1 s personal matters.

44 9. Thomson, William, A Compendious Vieu of the 'i'rial of Aaron DuIT. Richmond, 1807. This book is also a very good source for the trial itself. It does not give as :3Complete an account as does Robertson's book. Thomson was prejudiced against Burr and Marshall and the book, in places, shom; his pre;judice.

3 v.

lO.

Wilkinson, General James, llemoirs of Hy O\m Times. Philadelphia,, 1816.

ll.

Wirt, William, The Two Principle Arguments of William Hirt. Richmond, 1808. SEC:.HJDf..RY SJURCES

1. Adams, Henry, History of the United States. 2.

9 v.

Heu Yol'k, 1890.

Beveridge, Albert Jeremiah, Life of John I!arshall,

1916-1919 ..

4· v. Bost.on,

The background in Beveridgc's book is very good material and seems to be accurate. Beveridge give~ D good account of the trial, although he is biased towards Ea:rshall.

J.

4.

Christian, H. Asbury,

~fohm:md,

Hm• Past ond Present..

Richmo:id, 1912.

Corwin, Edward Samael, John Harsha 11 and the Constitution. New Haven, 1919.

5.

Faulkner, P,.obert K., 11 Johu lfar:;hall and the Bu IT 'rria l. 11 The Journal of American History;, LIII. (September, 1966), 247-258.

6. Hill, Frederick Trevor, Decisive Battles of the Law. 1.

lfou York, 1907.

Jenkinson, Iosac, Aaron Burr, His Personal and Political Helations with Thomas Jefferson and Alexande~ Jla~iltcn. Cleveland, 1908.

8. Halone, Dumas, Jefferson and His 'l!ime (Jefferson and tho Ordeal of Liberty, III~.

Boston, 1962.

9. McCaleb, Walter Flavius, The Aaron Burr Conspiracz. 3 ed. New York, 1966. 10.

Oster, John :t.:dward, The Political and Economic Doctrine:: cf John !!arshall. New Yorl~, l9ili. -

11.

Randall,

Henry s., The L::.ro of Thom::is Jeff.ors:ln. 3 v.

1858. 12.

Rich~ond

L'nquirer, 18o7.

Nar York,

45 13• Swisher, Carl Brent, American Constitutional Developments. Boston, 1943.

14.

Wmdall1 Samuel Henry, Amun Burr.

2 v. Ucw York, 1927.