Aaron Burr, Sir

I had intended to take a break from discussing a historical trial this month. But then, I discovered that Aaron Burr went on trial in August 1807. I felt compelled to release my inner Lin-Manuel Miranda.

Aaron Burr had served as an officer in the Continental Army and New York’s attorney general. In the election of 1800, he tied Thomas Jefferson in electoral votes for the Presidency. The House of Representatives chose Thomas Jefferson as the third president, electing Burr as vice-president.

Broadway Spoiler Alert—He later killed Alexander Hamilton in a duel.

Burr never went to trial for shooting Hamilton. Rather, he was tried for empire building in the American West.

The participants in that case represented some of the major players in the founding of America. The trial judge was John Marshall, chief justice of the United States Supreme Court and the most important justice in Supreme Court history.

Burr was defended by two delegates to the Constitutional Convention—Edmund Randolph and Luther Martin. The prosecution’s team included Charles Lee, a former attorney general and William Wirt, a future presidential candidate.

Behind the scenes, Thomas Jefferson pushed for the prosecution and helped craft the government’s theory of the case.  

In March 1805, Burr resigned as vice president near the end of Jefferson’s first term. He had earlier lost the race for the governorship of New York. Following his political setbacks, Burr turned his attention to the vast expanse of western lands. In 1803, Thomas Jefferson completed the Louisiana Purchase. Many people living on the frontier considered the lands of Nueva España rightfully part of the United States as well.

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In 1806, Burr acquired a large tract of territory from the Spanish. He envisioned a settlement and possibly an empire and began recruiting armed men. In his cause, he enlisted an old friend, General James Wilkinson, then Governor of America’s new Louisiana territory.  Allegedly, Burr worked to secure support for an independent dynasty stretching from New Orleans across Texas. He traveled about the American republic, enlisting support and exchanging ciphered messages with Wilkinson. At a dinner meeting on Blennerhassett’s island, a large island in the Ohio River, Burr and Herman Blennerhassett planned to assemble and train men there.

In July 1806, Burr’s secretary delivered a ciphered letter to Wilkinson announcing that the operation had commenced. The secretary allegedly told Wilkinson that Burr’s troops numbered in the thousands. Wilkinson, however, abandoned the dream of a western empire. He turned on Burr and forwarded to Thomas Jefferson a deciphered copy of the letter.

Jefferson responded by signing a proclamation urging the local authorities to “Search out and bring to…punishment all persons engaged…in such enterprise.”

Burr surrendered near Natchez, Mississippi. A grand jury was empaneled and after listening to evidence declared Burr “not guilty of any crime or misdemeanor against the United States.”  He was released and disappeared into the wilderness.

Under the direction of the president, government agents gathered additional information. A new arrest warrant was issued. The authorities arrested Burr in Alabama and transported him to Richmond, Virginia. John Marshall, sitting in Richmond, heard the preliminary evidence and ruled that Burr could be tried on misdemeanor counts of violating the Neutrality Act with Spain, but not on treason.

Unsatisfied, Thomas Jefferson printed circulars asking the western lands to produce any good citizen to come forward with information. He offered blanket pardons and sent out a marshal to gather testimony.

Burr’s pre-trial resumed in May. The prosecution pushed for the treason charges and offered new evidence. The defense urged a subpoena for presidential correspondence between Jefferson and Wilkinson regarding the matter. Marshall authorized the subpoena, Jefferson never complied. Jefferson invoked what we think of today as executive privilege.

Treason is the only crime described in the United States Constitution. The case against Burr required Justice Marshall to interpret the meaning of “treason”. He defined it as requiring an overt act levying war against the United States, and not just a scheme. The Constitution additionally requires two witnesses to testify to prove treason. In a written opinion on the admissibility of evidence, Justice Marshall restricted the government to proving that assembling men on Blennerhasset’s island was Burr’s overt act of waging war on the United States.

Aaron Burr never levied war against the United States. When a United States official came to Blennerhasset’s island to arrest some of the men, they refused arrest and pointed muskets at him. This was the overt “act of war” upon which the United States government based its treason case. It might have been treason or more simply, resisting arrest.

The testimony, furthermore, showed that Burr was 100 miles away from Blennerhassett’s island when the event occured.

With Marshall’s restrictions, the outcome was pre-ordained. The jury’s verdict, returned September 1st, 1807, found Burr “not proved to be guilty under this indictment by any evidence submitted to us.” The wording has left scholars to ponder the “what ifs” ever since.

Historians have never resolved whether Burr committed a criminal act. Academic debate continues to the present. Were Burr’s actions patriotic or treasonous? How Burr’s actions were viewed may depend as much upon where one lived and the politics of the observer. The Burr case is worth pondering in our current political climate as we again discuss the limits on executive privilege and behavior disloyal to the nation.

Or, if we want to rap it, what word rhymes with Blennerhassett?  

Mark Thielman

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