The Treason Trial That Nearly Destroyed Aaron Burr

On July 11, 1804, Aaron Burr shot and killed his longtime political rival, Alexander Hamilton, a former Treasury Secretary, in a duel in Weehawken, New Jersey. At that point, he was the Vice President of the United States, having been elected alongside President Thomas Jefferson. The shooting resulted in murder indictments in two states. Burr served the rest of his term, until March 1805, as a political outcast, trusted by neither party, with nowhere to rise within the Washington hierarchy.

Burr secretly turned to the British for help funding his comeback. In 1804-05, he proposed to the British ambassador to the U.S., Anthony Merry, that Britain lend him 100,000 pounds and provide warships. The money and ships would supposedly let Burr separate the western part of the U.S. from the Union. Merry sent the request on to London, but the British never responded.

However, in 1805 Burr found the most powerful supporter he would ever have: General James Wilkinson, who was governor of a portion of the Louisiana Territory at the time. Burr and Jefferson had no idea, though, that since 1787, Wilkinson had been on the payroll of the King of Spain as Agent 13. He would continue to hold this secret position in the future.

Blennerhassett was a wealthy Irish immigrant who had a 300-acre estate on an island in the Ohio River. Burr introduced him to the project in May 1805, traveling upriver through a series of frontier settlements. Blennerhassett was instantly convinced by Burr’s vision. He purchased 15 riverboats, stockpiled enormous quantities of supplies, and opened his island to Burr’s recruits. This investment would eventually prove ruinous for Blennerhassett.

Burr bought a stake in several hundred thousand acres of land on the Ouachita River in north-central Louisiana in July 1806. Known as the Bastrop tract, it was ostensibly to serve as a refuge for armed settlers who would farm peacefully, but if war should come with Spain, the Bastrop tract might well serve as a base of operations. Historians debate whether the farming purpose was genuine.

Later that July 1806, Burr wrote General Wilkinson, his secret co-conspirator within the military, in code and had it delivered by a courier named Samuel Swartwout. The letter contained plans to assemble 500 to 1,000 men and set out with a flotilla on the rivers in November. It looked like just a routine piece of tradecraft at the time. It would soon become the government’s top exhibit against him.

Then in October 1806, Wilkinson had second thoughts about his own secret involvement in the plot. He doctored Burr’s ciphered letter by omitting any mention of himself and then alerted Jefferson that a “deep, dark, wicked, and widespread” conspiracy was underway. Wilkinson’s concern for the fate of the United States was secondary to his desire to conceal his pay from Spain.

In a proclamation dated November 27, 1806, Jefferson informed the public of the existence of an illegal military expedition underway in the west. In his message to Congress on January 22, 1807, Jefferson said Burr’s guilt “is placed beyond question.” No indictment from a grand jury, not one piece of admissible evidence, had come close to being presented in court. Jefferson’s words determined public perception of the man before any trial took place.

When the news reached Harman Blennerhassett’s island on the evening of December 10, 1806, that the Virginia militia was on its way, Blennerhassett and around 30 of his recruits fled in four boats and navigated down the Ohio River before the troops arrived. No battle took place. Burr was then more than 200 miles away, somewhere between Kentucky and Tennessee. This would matter later.

In January 1807, Burr surrendered himself to the territorial authorities at Natchez, Mississippi, where a grand jury refused to indict him. Nevertheless, the judge kept him under arrest without bail. Believing that Wilkinson’s soldiers would shoot him rather than return him to stand trial, he donned a shabby suit of clothes and a faded beaver hat and slipped away to Florida, then in the hands of the Spanish, on February 1, 1807.

On February 19, 1807, Nicholas Perkins, a civilian federal land registrar, saw and recognized Burr near Wakefield, in the Mississippi Territory. Perkins reported his sighting to Army lieutenant Edmund P. Gaines at a nearby fort, and Gaines arrested Burr without incident. Now Burr faced the long trip east.

Burr was then escorted under armed guard by Perkins, the land registrar who had seen him, on a grueling 1,000-mile trip over land to Richmond, Virginia. There he arrived on March 26, 1807, to stand trial before one of the most esteemed jurists in the nation: Chief Justice John Marshall.

At this hearing, on April 1, 1807, Marshall, who was sitting as a circuit judge, as was common at the time, found that there was insufficient probable cause to charge Aaron Burr with high treason, but would allow him bail of $10,000 on a misdemeanor charge. In short, before the trial even started, the government’s case against Aaron Burr was already much weaker than Jefferson had suggested.

The 16-man grand jury convened in Richmond on May 22, 1807. Marshall appointed John Randolph of Roanoke, an uncompromising member of Virginia’s delegation in Congress, as foreman. Randolph was suspicious of both Jefferson and Burr. This mattered because the jury was about to hear testimony that would badly damage the prosecution’s own star witness.

On June 13, 1807, Marshall granted a defense motion seeking Wilkinson’s letters, issuing a subpoena directing Jefferson to turn them over. Jefferson refused to go to Richmond, invoking the principle of executive privilege, but stayed in Washington and provided the Court with edited versions of the letters. In a first, a sitting President was forced to answer a judicial demand for evidence.

After days of interrogation, General James Wilkinson, Burr’s former partner and the government’s star witness, finally told the Richmond grand jury that he had changed and forged parts of Burr’s cipher letter. In fury, the grand jury nearly charged him with withholding information. John Randolph, the Virginia congressman who presided over the grand jury, called him “a finished scoundrel.” The government’s main witness had completely ruined his own reputation.

Burr was indicted on June 24, 1807. Among his lawyers was Luther Martin, a clever, occasionally vitriolic attorney known as the “Bulldog of Federalism.” From August 20 to 29, they contended that the Constitution defined treason as “levying war” and required proof by two witnesses to the same overt act. There was no evidence that Burr was on Blennerhassett Island. Prosecutor William Wirt gave a fine speech, saying that the island’s proprietor was a kind, charitable man who had been seduced into treason by Burr’s machinations. Once again, this was persuasion, not evidence.

Then Marshall wrote a long opinion, rejecting the theory that a man could be guilty of treason merely by drawing up a scheme or speaking words of encouragement. According to his interpretation, the person on trial had to actually be there and take part in an overt act of treasonous war. Once Blennerhassett’s recruits departed from the island, Burr was over two hundred miles distant, rendering much of the testimony against him elsewhere inadmissible. Most of the prosecution’s case fell apart.

With nothing further to offer, the prosecution stood down. On September 1, 1807, Edward Carrington, the trial jury’s foreman and Marshall’s brother-in-law, pronounced that Burr was “not proved to be guilty.” The trial jury was a separate panel from the grand jury. Burr objected to the phrasing, and Marshall directed that it be amended to read “Not Guilty.” Jefferson requested a second trial on an alternative charge. This second trial lasted less than two weeks and concluded on September 15, 1807, with another acquittal. Burr was cleared.

Though Burr was found not guilty, he was ruined. He was burned in effigy and hounded by his creditors. He fled to Europe, where he used various pseudonyms for a number of years, but failed to drum up support for further conspiracies in Spanish America. His daughter Theodosia was lost at sea. He eventually returned to New York, took up the practice of law, and died in obscurity at age 80 on Staten Island. The standard of evidence that Marshall established in Richmond and his ruling that presidents are subject to subpoenas from the courts were quoted decades later by the Supreme Court in the Nixon tapes case.

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