The Aaron Burr Treason Trial
by

Charles F. Hobson
Editor, The Papers of John Marshall,
Omohundro Institute of Early American History and Culture,
College of William and Mary

Prepared for inclusion in the project

Federal Trials and Great Debates in United States History

Federal Judicial Center
Federal Judicial History Office
2006This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage programs relating to the history of
the judicial branch of the United States government.” The views expressed are those of theauthor and not necessarily those of the Federal Judicial Center.

Blank page inserted to preserve pagination when printing double-sided copies.

The Aaron Burr Treason Trial

Contents
The Aaron Burr Treason Trial: A Short Narrative 1
The law of treason 1
The Burr conspiracy 2
Ex parte Bollman and Swartwout 3
U.S. Circuit Court, Virginia: Preliminary examination 4
U.S. Circuit Court, Virginia: Grand jury 5
U.S. Circuit Court, Virginia: Trial for treason 6
The Federal Court and Its Jurisdiction in the Burr Case 9
U.S. Circuit Court for the District of Virginia 9
The Judicial Process: A Chronology 10
Legal Questions Before the Federal Court 13
What constitutes “levying war” under the Constitution’s definition of treason? 13
Could a subpoena duces tecum issue to the President of the United States? 13
Did a person accused of a crime have a right before, as well as after, indictment torequest the court to compel the attendance of his witnesses? 14
Can a person who organized or instigated the gathering of an armed force beconsidered as legally or constructively present at the commission of the treasonable
act if that person did not participate in the armed assembly? 14
Who is a competent juror? 15
What had the federal courts decided in earlier cases of treason? 15
Lawyers’ Arguments and Strategies—The U.S. Government 18
Lawyers’ Arguments and Strategies—The Defense 19
Biographies 20
John Marshall 20
Thomas Jefferson 21
Aaron Burr 23
Harman Blennerhassett 25
James Wilkinson 27
Luther Martin 28
John Wickham 30
George Hay 31
William Wirt 32
Media Coverage and Public Debates 34
Newspaper articles 34
Historical Documents Related to the Burr Case 40
The “cipher letter” to James Wilkinson 40
Marshall’s opinion (excerpts), June 13, 1807 42
Subpoena duces tecum 45

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Indictment for treason 46
Letter from Chief Justice Marshall to Associate Justice William Cushing (excerpts) 49
Argument of John Wickham (excerpts) 50
Argument of William Wirt (excerpts) 53
Marshall’s opinion (excerpts), August 31, 1807 56
Select Bibliography of Works Consulted in the Compilation of the Burr Trial Site 61
Secondary sources 61
Court records 61
Published primary sources 61

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

The law of treason
From the standpoint of constitutional law, the Burr trial is notable for Chief JusticeMarshall’s landmark decision narrowly construing the Constitution’s definition oftreason and thereby making conviction for this crime exceedingly difficult. Article
III, section 3, of the Constitution provides that “Treason against the United States,
shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the
Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
The government charged Burr with the first of these two crimes of treason, levying
war against the United States.
In limiting treason “only” to levying war and giving aid and comfort to enemies,
the framers established a more restrictive definition than had prevailed in GreatBritain. Some of the language used in the Constitution was identical to an English
statute of 1352 that listed seven treasonable actions, including levying war against
the king and adhering to his enemies and giving them aid and comfort. Of the othertreasonable actions in the English law, the most important was “compassing” (bringing about) or imagining the death of the king. English judges had extended thiscategory of treason by “construction” (interpretation) to embrace spoken or written
words critical of government policy and actions taken to prevent the execution of alaw. The framers’ omission of this definition of treason was intended to restrict theconcept of “constructive treason”—in other words, speaking or acting to encouragetreason—that in England had been exploited to suppress dissent and political opposition.

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

The Burr conspiracy
The government prosecutors alleged that Burr levied war against the United Statesas part of a conspiracy to establish a separate confederacy composed of the Westernstates and territories. Separation of the West from the union was a real possibility
in the early nineteenth century, when many doubted whether a republican form ofgovernment centered on the Atlantic coast could effectively extend its jurisdiction
to the vast region between the Alleghenies and the Mississippi River. Independentminded Westerners were eager to expand settlement into territories still belonging
to Spain, causing endless friction that threatened to embroil the United States in a
war with that nation. The West remained a highly unstable region, where a man oftalents and enterprise might find opportunity.
Aaron Burr clearly believed the West offered him a second chance after his fallfrom grace. Nearing 50 after his fatal encounter with Hamilton, Burr was full of restless ambition, determined to play the grand role he believed was his destiny. In 1805,
he floated down the Ohio and Mississippi to New Orleans, greeted enthusiasticallyat various stopping points. This triumphal tour buoyed his hopes, and he set about
making plans, seeking funds, obtaining supplies, and recruiting followers for a second
expedition to take place in the fall of 1806. Burr found recruits among young men
living in the interior section of the country, susceptible to his persuasive charm andmotivated by dreams of winning glory and fortune. He found willing financial backers as well, including one Harman Blennerhassett, an immigrant Irish lawyer who
built an idyllic estate on an island in the middle of the Ohio River. Blennerhassett
not only provided funds, but his island was nicely situated to serve as an assembly
point for men, boats, and supplies.What were Burr’s intentions? Clearly, he plannedsome kind of expedition that was military in character. Did he envision a war with
Spain, in which he would lead an attack upon Spanish possessions in North America,
invade Mexico, and liberate South America? If this was his aim, he was not a traitor,

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though he might be in violation of the Neutrality Act of 1794, which made it a “highmisdemeanor” to engage in military operations against a foreign power with whom
the United States was at peace. If such an operation succeeded, however, Burr most
likely would not be prosecuted but hailed as a patriot whose military exploits fulfilled
the expansionist aspirations of his countrymen. Or, did Burr’s proposed expedition
against Spain mask a traitorous design to foment revolution in the West and establish
a separate grand empire extending from the Mississippi Valley to Mexico City andbeyond?
Burr’s enterprise collapsed before it had hardly begun, thanks to information provided by General Wilkinson, who was also governor of the Louisiana Territory. Burr
had drawn Wilkinson so far into his plans that the two communicated in “cipher,” acode in which numerals are substituted for letters. In October 1806, Wilkinson got
cold feet and decided to turn informer. He sent President Jefferson a translated copyof a cipher letter said to be from Burr. This letter, dated July 1806, spoke of plans tomove down the Ohio in mid-November and proceed to New Orleans. Wilkinson
subsequently furnished additional information that Burr was raising an army of
7,000 men, that a certain unspecified territory was to be “revolutionized,” and that
seizures were to be made at New Orleans.

Ex parte Bollman and Swartwout
Jefferson responded by issuing a proclamation of conspiracy. In short order, Burr’s“army” melted away to a few hundred recruits. Wilkinson himself took action in New
Orleans, declaring martial law and rounding up suspects and potential witnesses.
Among these were Burr’s associates, Erick Bollman and Samuel Swartwout, who had
carried messages, including the cipher letter, from Burr. Wilkinson sent them under
military guard to Washington, where they were held in custody. In February 1807,
the Supreme Court granted their motion for a writ of habeas corpus, by which theprisoners were brought into court for an inquiry into the legality of their imprisonment.
Marshall’s opinion in Ex parte Bollman and Swartwout ordered the prisoners’
release on the grounds that there was no probable cause to commit them on chargesof treason. The opinion offered general observations about the nature of treason
that were to have an important bearing in the trial of Aaron Burr. To be traitor, said
Marshall, an individual did not have to appear “in arms against his country. On thecontrary, if war be actually levied, that is, if a body of men be actually assembled
for the purpose of effecting by force, a treasonable purpose, all those who perform
any part, however minute or however remote from the scene of action, and who are
actually leagued in the general conspiracy, are to be considered as traitors.” By thetime this opinion was published in the newspapers, the Jefferson administration had
already decided to prosecute Burr for treason. The government was fully aware of the3The Aaron Burr Treason Trialdifficulty of securing a conviction for treason. Indeed, its quick and effective action
in suppressing the conspiracy before it ripened into open warfare compounded the
problem of proving overt acts as required by the Constitution. The Bollman opinion,
however, might have encouraged the President and his legal advisers that they could
make a case against Burr. They chose as the overt act required for conviction the events
that took place on Blennerhassett’s Island in the Ohio River on the night of December
10, 1806. A body of men had assembled there and was preparing to embark downriver, apparently to join up with other detachments and proceed to New Orleans.
There was a brief confrontation of sorts when a Virginia militia unit attempted todissuade Blennerhassett and the others from leaving the island. The militia backed
off in the face of drawn muskets, and Blennerhassett’s party proceeded on its way.
Burr himself was not on the island at the time, having gone ahead weeks earlier, but
the Chief Justice himself had said that a person could be a traitor, although “remotefrom the scene of action.”

U.S. Circuit Court, Virginia: Preliminary examination
While the Supreme Court was considering the case of Bollman and Swartwout, anarmy lieutenant holding a copy of the President’s proclamation arrested Burr in theMississippi Territory. By late March 1807, the prisoner was in Richmond for a hearing
before Chief Justice Marshall, who conducted a preliminary examination in the U.S.
Circuit Court for Virginia. Because Blennerhassett’s Island lay inside Wood County,
Virginia (now West Virginia), Burr’s case fell within the jurisdiction of that court, on
which Marshall and U.S. District Judge Cyrus Griffin sat. The court was not then in
regular session, but a judge could conduct a criminal hearing at any time.
At Burr’s preliminary hearing on March 31, 1807, U.S. Attorney George Hay andU.S. Attorney General Caesar Rodney asked Judge Marshall to commit Burr to jailon charges of treason and the misdemeanor of waging war against Spain, though
the government’s real interest was in convicting Burr of treason. John Wickham and
Edmund Randolph represented Burr, who also argued on his own behalf.
On April 1, Chief Justice Marshall read the first of many opinions he was to givein this case. As in the Bollman case, he concluded that the evidence was not sufficient
to show that Burr’s alleged treasonable designs had “ripened into the crime itself bylevying war against the United States.” He did, however, order Burr to be committed
for the misdemeanor of carrying on a military expedition against Spanish territory.
He set bail at $10,000, and the prisoner entered into a bond in that amount for his
appearance at the next session of the circuit court in May. Like any other accused
person, Burr did not have to put money up front. Rather, he and some friends acting
as “securities” bound themselves to pay in case he did not show up in court.

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U.S. Circuit Court, Virginia: Grand jury
Burr’s case by now had become deeply embroiled in politics, with Republicans supporting President Jefferson’s measures to bring the accused traitor to justice andFederalists rallying to defend Burr against the charges. Many in heavily Republican
Virginia were inclined to believe Burr had acted traitorously, and this popular belief
made jury selection more difficult and time consuming. After the opening of thespring term of the U.S. circuit court on May 22, 1807, a grand jury of sixteen was
sworn in, and Chief Justice Marshall delivered a charge that was not published but
reportedly focused on “the definition and nature of treason, and the testimony requisite to prove it.”Burr’s counsel seized the offense by attacking the prosecution and its motives.
Luther Martin, who joined Burr’s defense in time for the grand jury proceedings,
assumed the role of principal attack dog. In one notably vitriolic rant, he denounced
a President who had “let slip the dogs of war, the hell-hounds of persecution, tohunt down my friend.” Earlier, Jefferson had unwittingly and unwisely made himself
vulnerable to such censure by publicly declaring that Burr’s guilt was “beyond question.” Martin’s outburst came in the midst of the most important argument at thisstage of the proceedings, prompted by Burr’s motion for a subpoena duces tecum to
President Jefferson.
A subpoena duces tecum orders a person to appear in court and “bring with you”
certain specified documents. Burr wanted the President to turn over a letter andpapers received from Wilkinson, together with copies of the President’s reply andcertain directives issued by the departments of war and navy. The motion raised thefundamental question of whether the federal judiciary could issue such a subpoena to
the President without violating the constitutional principle of separation of powers.
The subpoena followed an earlier contest between the Jefferson administration and
the Supreme Court concerning the delivery of a commission to a justice of the peace.
In that earlier case, Marbury v. Madison (1803), the Supreme Court declined for lackof jurisdiction to order the delivery of the commission but rebuked the executive
branch for not doing its legal duty.
In Burr’s case, too, the threatened confrontation did not occur. Chief JusticeMarshall granted the motion for a subpoena, maintaining that the President was notexempt from court orders designed to protect the constitutional rights of criminal
defendants. By the terms of the subpoena, the President was to provide the documents but did not have to appear personally. Jefferson did not acknowledge the court’sorder but informed U.S. Attorney Hay that he had substantially complied with the
subpoena’s terms by previously delivering the requested documents to the prosecutor. In so doing, Jefferson claimed to act voluntarily and did not acknowledge thejudiciary’s right to compel him to release executive papers. He also maintained thatin the interests of national security the President must be the sole judge of which

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papers could be safely disclosed. Jefferson here asserted the doctrine known as “executive privilege,” a claim invoked by President Richard Nixon in 1974 in response to a
subpoena duces tecum ordering him to produce tapes of White House conversations
relating to the “Watergate” case. Whether or not the papers sought by Burr werematerial to his defense, the motion for a subpoena did provide an opportunity for
his lawyers to score points against the administration. Another integral part of theirlegal strategy was to discredit Wilkinson, the prosecution’s star witness, whom theyaccused of criminal misconduct in ordering arrests, forcibly seizing and imprisoning potential witnesses, and then having them transported under military guard toRichmond. Wilkinson, indeed, proved to be a disappointment to the prosecution,
his credibility tarnished by suspicion that in revealing Burr’s plot he was merely trying to save his own neck. His testimony before the grand jury was undermined byindications that he had altered the famous cipher letter in ways to conceal his own
relationship with Burr. Despite its questions about Wilkinson, the grand jury on June
24 returned indictments against Burr and Blennerhassett for treason and the misdemeanor charge of carrying on war against Spain. Chief Justice Marshall scheduled atrial for Burr at a special session of the court beginning August 3.

U.S. Circuit Court, Virginia: Trial for treason
After several postponements because of absent witnesses and a week of selecting
twelve jury members, the court on August 17, 1807, directed the jury to be sworn
in, the indictment read, and the case opened by the government. Assisting Hay inthe prosecution were Alexander MacRae, then lieutenant governor of Virginia, andWilliam Wirt, a future U.S. attorney general. Burr’s legal team now numbered five,with Benjamin Botts and Charles Lee joining the previously retained Wickham,
Randolph, and Martin.
The government’s case hinged on proving that Burr’s military enterprise had atreasonable design; that the gathering of men on Blennerhassett’s Island was a partial
execution of that design and constituted an overt act of levying war; and that Burr,though not then on the island, could be considered in law as “constructively” present.
To make this case, the prosecution intended to offer the testimony of 140 witnesses.
The defense, believing that a Virginia jury would be unsympathetic with the accused,settled on a strategy of taking the case from the jury and placing the question of Burr’s
guilt in what it hoped would be the safer hands of the court. After only a few witnesses
had testified, Burr’s counsel moved to exclude the further admission of evidence as“collateral,” not directly pertinent to the indictment’s specific charge. At best, theyargued, such testimony could show Burr’s treasonable intentions, his connection withthe gathering of men on the island, or his participation in actions elsewhere and atother times, but it could not prove that Burr levied war on Blennerhassett’s Island.

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In an exhaustive hearing on this motion, the lawyers rummaged through thewhole course of English and American precedents on the law of treason. All theargumentation boiled down to the meaning of “levying war” in the treason clauseof the Constitution. The prosecution pressed for a broad definition by which thegathering of armed men on the island constituted an overt act of levying war. Citing
Marshall’s statements in Ex parte Bollman and Swartwout, Hay and his team argued
that Burr was, in the language of English common law, legally present on the islandas the “procurer,” that is, the instigator and organizer of the armed force plotting tooverthrow United States authority in New Orleans. Wickham and the other defense
lawyers insisted upon a strict definition of treason that required an overt act of force
and the direct involvement of the accused in that act of force.
On August 31, Chief Justice Marshall delivered the major opinion of the Burrtrial, upholding the defense’s motion to exclude the further admission of testimony.
The opinion was dense and complicated, full of qualifications and intricate legal distinctions. Speaking only as a circuit court judge, Marshall appeared to shy away frommaking definitive pronouncements on such a difficult and sensitive constitutional
issue as the law of treason. The opinion was nonetheless clear and forthright in its
essential holding that the Constitution required a strict definition of treason—that
is, that the accused had to be shown to have levied war according to the precise terms
set out in the indictment.
Rather than repudiate his earlier decision in Ex parte Bollman and Swartwout, Marshall explained and qualified it. That opinion, he said, despite its apparent relevanceto Burr’s case, did not extend to one who counseled or advised treason but performed
no act in carrying on the war. He also denied that the earlier opinion dispensed with
the idea of force as an essential element in levying war. Ultimately, Marshall ruledthat the indictment was flawed in alleging that Burr levied war on Blennerhassett’s
Island. Instead, it should have stated the truth that the accused was absent and that
his treason consisted in procuring the assemblage. Such procurement was the overt
act that would have to be proved by two witnesses. None of the testimony could
establish this overt act. With no further testimony to consider, the jury had virtually
no choice but to acquit. In an unusual twist, however, the verdict, instead of a simple“not guilty,” declared Burr “not guilty by the evidence presented.”
The decision of August 31 effectively ended the trial of Aaron Burr and spared
him the penalty of death by hanging. His ordeal in court lasted another month anda half, however. After failing to convict Burr of treason, the government halfheartedly tried him on the misdemeanor charge of waging war on Spain. This trial, too,
ended in acquittal, on grounds similar to the earlier acquittal. The federal attorney
Hay then had one more legal weapon at his disposal: a motion to “commit,” or send,
Burr for trial in the federal court of Kentucky or Ohio on treason and misdemeanor
charges.

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

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The Federal Court and Its Jurisdiction in
the Burr Case
U.S. Circuit Court for the District of Virginia
The U.S. Circuit Court for Virginia had jurisdiction in Burr’s case because the offense with which he was charged was stated to have occurred in Wood County inthe district of Virginia. That county’s boundaries included Blennerhassett’s Islandin the Ohio River.
The U.S. circuit courts established in the Judiciary Act of 1789 were primarily
courts of original jurisdiction. They tried civil suits between citizens of different states
and crimes defined by federal law. They were distinct from the U.S. district courts,
which were principally original courts for trying admiralty and maritime causes andsuits for penalties and forfeitures incurred under federal laws. The circuit courts also
had limited appellate jurisdiction over the district courts. Except for a brief intervalin 1801 and 1802, until 1869 there were no separate circuit court judges. The circuit
courts were composed of a Supreme Court justice, assigned to a particular circuit,and the local U.S. district judge.
By 1807 there were seven circuits. Chief Justice Marshall was assigned to thefifth circuit, comprising the districts of Virginia and North Carolina. The Virginia
circuit court met twice each year, beginning on May 22 and November 22. Marshall’s
colleague on the bench in Virginia was District Judge Cyrus Griffin, who made norecorded comments during the Burr trial.

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The Judicial Process: A Chronology
March 30, 1807
U.S. Circuit Court for the District of Virginia
At a special session at the Eagle Tavern in Richmond, Aaron Burr was brought before
Chief Justice Marshall to hear charges of treason and misdemeanor. U.S. Attorney
George Hay moved that Burr be committed to jail on these charges.

March 31, 1807
U.S. Circuit Court for the District of Virginia
Argument of the motion to commit Burr took place in the hall of the House ofDelegates at the Virginia state capitol. Hay, assisted by U.S. Attorney General Caesar
Rodney, was opposed by John Wickham and Edmund Randolph, counsel for Burr,as well as by Burr himself.

April 1, 1807
U.S. Circuit Court for the District of Virginia
Marshall held that there was probable cause for committing the accused on themisdemeanor charge—that is, for carrying on a military expedition against the territories of Spain—but not on the charge of treason. Burr entered into a bail bondfor $10,000 to appear for trial at the U.S. Circuit Court on May 22.

May 22, 1807
U.S. Circuit Court for the District of Virginia
The court’s regular spring term commenced. A grand jury of sixteen was sworn in.
Marshall delivered a charge to the grand jury.

June 13, 1807
U.S. Circuit Court for the District of Virginia
Marshall delivered an opinion in favor of Burr’s motion for a subpoena duces tecum
to be issued to President Jefferson.

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June 24, 1807
U.S. Circuit Court for the District of Virginia
The grand jury returned indictments against Burr for treason and for carrying on
war with Spain. Burr pleaded not guilty on June 26. The court ordered the trial fortreason to begin on August 3.

June 30, 1807
U.S. Circuit Court for the District of Virginia
Marshall ordered Burr to be confined to the state penitentiary until the trial.

August 17, 1807
U.S. Circuit Court for the District of Virginia
Marshall directed the jury of twelve to be sworn in and the indictment for treason
to be read. Hay opened the case for the prosecution and proceeded to examine thefirst of 140 proposed witnesses.

August 20, 1807
U.S. Circuit Court for the District of Virginia
After only a dozen witnesses had been examined, the defense moved to exclude theadmission of evidence that did not go to prove the charge as defined by the indictment, that Burr had committed treason by levying war on Blennerhassett’s Island on
December 10, 1806. This motion provoked an elaborate argument over the meaningof treason that continued through August 29.

August 31, 1807
U.S. Circuit Court for the District of Virginia
Marshall delivered the principal opinion in the trial, granting the defense’s motion
to exclude collateral testimony.

September 1, 1807
Hay informed the court that he had no further evidence or arguments to present to
the jury. The jury retired briefly and returned a verdict that Burr was “not proved to

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be guilty under this indictment by any evidence submitted to us. We therefore find
him not guilty.”

September 9, 1807
U.S. Circuit Court for the District of Virginia
The trial on the misdemeanor began. Burr was charged with levying war against
Spain in violation of the Neutrality Act.

September 15, 1807
U.S. Circuit Court for the District of Virginia
Marshall issued a ruling excluding evidence that did not directly prove the charges
set out in the indictment. After retiring for twenty minutes, a jury returned a verdictof not guilty.

September 18, 1807
U.S. Circuit Court for the District of Virginia
Hay moved to send Burr for trial in another federal court on charges of treason
committed outside Virginia.

October 20, 1807
U.S. Circuit Court for the District of Virginia
Marshall refused to commit Burr for treason, but ordered him to stand trial in Ohioon a charge of preparing and providing the means for a military expedition against
Spain.

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Legal Questions Before the Federal Court
What constitutes “levying war” under the Constitution’s
definition of treason?
A warlike gathering or assemblage of men having an appearance of force and in asituation to practice hostility, said Chief Justice Marshall in his opinion of August
31, 1807.
This meaning of levying war, said Marshall, was based on a multitude of English
cases and authorities and was confirmed by the few American cases of treason. In Ex
parte Bollman and Swartwout, the Chief Justice had said that it was not the court’s
intention “to say that no individual can be guilty” of treason “who has not appearedin arms against his country.” Marshall explained that the Bollman opinion, properly
understood, did not overthrow the authority of earlier settled cases and declared thatany assemblage with a treasonable design was a levying of war. The Bollman opinion,
he explained, did not reject the idea of force as an essential element in levying war.
If actual fighting was not required, however, then there had to be a warlike appearance, an assemblage in military array in such manner as to indicate a clear plan touse force.
After elaborately defining the term “levying war,” Marshall cautiously refrained
from deciding whether the assemblage on Blennerhassett’s Island amounted to an
overt act of treason, though he strongly implied that it did not.

Could a subpoena duces tecum issue to the President of theUnited States?
Yes, said Chief Justice Marshall, in his opinion of June 13, 1807.
U.S. Attorney Hay acknowledged that a general subpoena ordering a witness totestify might issue to the President, but he insisted that the executive was exempt
from a subpoena duces tecum ordering him to produce certain specified documents.
Marshall responded by first considering why the President was not exempt from ageneral subpoena. A President, he said, was not a king, but a citizen like everyone else
and therefore subject to the law and the Constitution. In terms of this constitutional
obligation, Marshall saw no material distinction between a general subpoena and a
subpoena duces tecum.
The President could not claim exemption on the basis of the pressing demandsof his office, since these did not require all of his time. Nor could the President cite
national security as grounds to withhold documents that might be material to theaccused. If documents contained information too sensitive for public disclosure, the13The Aaron Burr Treason Trial

court would take care to keep them confidential. In reply to the argument that the
motion for a subpoena implied “disrespect” to the President, Marshall declared thatthe court felt “many, perhaps peculiar motives, for manifesting as guarded a respect
for the chief magistrate of the union as is compatible with its official duties.”Jefferson,
citing the principle of separation of powers, did not concede that the federal judiciary could compel the federal executive to answer legal process. If his testimony
were needed to aid a defendant, he would give it voluntarily. Jefferson also claimed“executive privilege” in deciding what documents, and which part of them, mightsatisfy the demands of justice.

Did a person accused of a crime have a right before, as well
as after, indictment to request the court to compel theattendance of his witnesses?
Yes, said Chief Justice Marshall, in his opinion of June 13, 1807.
While the grand jury was meeting, Burr requested the court to issue a subpoena
to President Jefferson. The prosecution objected that until an indictment was foundagainst Burr, he was not entitled to have the court issue subpoenas. Marshall repliedthat the “genius and character of our laws and usages” supported a “fair and impartial
trial” and consequently favored an expansive view of the rights of the accused. He
gave particular emphasis to the Sixth Amendment, which gave to a person accused ofa crime “a right to a speedy and public trial, and to compulsory process for obtaining
witnesses in his favor.” Courts, said Marshall, should regard this right as “sacred” andtherefore read the amendment to allow a party to request witnesses before as well as
after indictment.

Can a person who organized or instigated the gathering ofan armed force be considered as legally or constructively
present at the commission of the treasonable act if that
person did not participate in the armed assembly?
No, said Marshall. Even in English law, which extended the doctrine of constructive
treason to many cases, only persons close enough to the scene to provide direct andimmediate assistance in levying war could be considered as constructively present.
Burr’s situation, the Chief Justice explained, was like that of an “accessory,” orsubordinate accomplice, in a common crime. In such a crime, an accessory was one
who was not present at the commission of the offense but was nevertheless guilty as
a participant by organizing or instigating it. In the high crime of treason, however,there was a stricter standard that recognized no distinction between a “principal” (the14The Aaron Burr Treason Trial

chief actor or perpetrator) and accessory. To be implicated in treason, Burr had to beconsidered as a principal, charged with committing a specific overt act. In his case,the overt act cited in the indictment was not levying war on the island but “procuring”—organizing, advising, or instigating—the armed assemblage. This meant that
Burr could not be considered as being legally present on Blennerhassett’s Island, likean accessory in a common crime.
Whether procuring the armed force could be considered under the Constitution
as treason in levying war was a matter of great doubt. In any event, the act of procuring would have to be proved by two witnesses.

Who is a competent juror?
A person of open mind who has not previously formed an opinion of guilt or innocence, said Chief Justice Marshall in his opinion of August 11, 1807.
During jury selection, Burr’s lawyers challenged a number of prospective jurors
for “cause,” that is for holding opinions hostile to the defendant. U.S. Attorney Hay
complained that the questions posed by Burr’s lawyers were too general and might
prevent the selection of a jury.
Marshall stated that the common law required and the Constitution secured theright to an impartial jury, composed of persons who would fairly hear the evidence
and decide according to that evidence. Those who had already formed an opinion of
the accused’s guilt were disqualified, as were those who had formed an opinion noton the whole case but on a point so essential that it would have an unfair influence
upon the verdict.

What had the federal courts decided in earlier cases oftreason?
Although the lawyers and judges had plenty of English cases to consult about thelaw of treason, U.S. federal courts had decided only a few treason cases before UnitedStates v. Burr. Two of these grew out of the Whiskey Rebellion of 1794. Another casearose from resistance to the direct tax enacted by Congress in 1798. The Supreme
Court’s only consideration of treason had come in the habeas corpus hearing on
behalf of Burr’s confederates, Bollman and Swartwout. Lawyers cited all these cases,
as did Marshall in his principal opinion of August 31.
The Whiskey Rebellion Cases—A tax on whiskey distilleries provoked armed resistance in western Pennsylvania, which the Washington administration suppressed withfederal troops. The government entered treason prosecutions against a number ofthe so-called whiskey rebels in the U.S. Circuit Court for the District of Pennsylvania,
sitting at Philadelphia in the spring of 1795. Two of the trials ended in the convic-

15

The Aaron Burr Treason Trial

tions of Philip Vigol and John Mitchell, both of whom were later pardoned. In bothcases Justice William Paterson delivered jury charges that expounded the meaningof “levying war.” Marshall quoted Paterson’s charges to support his argument that
United States judges went beyond English judges in requiring “the actual exercise offorce, the actual employment of some degree of violence,” to constitute a levying ofwar.
United States v. Fries—In 1798, Congress passed a law levying a direct tax on houses, a tax that was forcibly resisted by German farmers in northeastern Pennsylvania.
In 1799, the federal government prosecuted John Fries, a leader of the resistance, in
the U.S. Circuit Court at Philadelphia. In the first trial of Fries, Justice James Iredelldelivered a grand jury charge and Judge Richard Peters delivered a jury charge statingthat an intention to prevent the execution of a federal law and any forcible opposition
designed to carry that intention into effect amounted to a levying of war against theUnited States.
Fries was convicted, but his lawyer successfully moved for a new trial. In the second trial Justice Samuel Chase stated in his jury charge that a conspiracy to oppose
the execution of a law was a misdemeanor, but a forcible carrying into effect of that
intention was levying war. He further stated that any force connected with that intention constituted the crime of levying war. Fries was convicted but was later pardonedby President Adams. Chief Justice Marshall quoted these charges, most extensively
that of Justice Chase, to support his contention that United States law required force
as an essential element of levying war.
Ex parte Bollman and Swartwout—The Supreme Court heard this case in thewinter of 1807, just before the proceedings against Burr commenced. Chief JusticeMarshall ordered the release of Bollman and Swartwout, two of Burr’s associates,on the ground that there was no probable cause to charge them with treason. In his
opinion Marshall remarked:
It is not the intention of the court to say that no individual can be guiltyof this crime who has not appeared in arms against his country. On thecontrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force, a treasonable purpose all those
who perform any part, however minute or however remote from the sceneof action, and who are actually leagued in the general conspiracy, are to beconsidered as traitors. But there must be an actual assembling of men for
the treasonable purpose, to constitute a levying of war.

This passage proved troublesome to Marshall in Burr’s case, the more so because these were his own words. The prosecution frequently quoted this passage insupport of its arguments that Burr should be considered as constructively present
on Blennerhassett’s Island and that force was not an essential ingredient in the act

16

The Aaron Burr Treason Trialof levying war. The defense, on the other hand, tended to ignore this statement or
dismiss it as “obiter dictum,” that is, something not essential to or directly related tothe substance of the decision.
In his Burr case opinion of August 31, Marshall took great pains to explain andclarify his earlier opinion regarding Bollman and Swartwout. That opinion, he said,
did not embrace the case of one who counseled or advised treason but performed
no act in carrying out the war. Nor did it overturn previously settled federal law that
required some degree of force to constitute an act of levying war.

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The Aaron Burr Treason Trial

Lawyers’ Arguments and Strategies—The
U.S. Government
United States Attorney George Hay and his associates William Wirt and Alexander
MacRae had to prove the case laid out in the indictment: that Aaron Burr committed treason by levying war against the United States on Blennerhassett’s Island on
December 10–11, 1806.

1. Burr, though not actually present on the island on the date specified
in the indictment, was legally or “constructively” present
Prosecution lawyers offered testimony to show that Burr had the treasonable intentions of seizing New Orleans, “revolutionizing” the west, and separating it from theunion. The “assemblage” (gathering or collection of persons) on the island was partof the grand design, they contended. As the mastermind of the plot, responsible forthe gathering of armed men on the island, Burr could be considered in law as present
at the commission of the overt act of treason. They relied on the Supreme Court’s
opinion in Ex parte Bollman and Swartwout, which stated that “if war be actuallylevied, that is, if a body of men be actually assembled for the purpose of effecting
by force, a treasonable purpose, all those who perform any part, however minute or
however remote from the scene of action, and who are actually leagued in the generalconspiracy, are to be considered as traitors.”

2. Arms and the use of force were not necessary ingredients toconstitute an act of levying war
The prosecution argued for a broad definition of “levying war.” Hay urged common
sense and considerations of national security in contending that an overt act oftreason did not require the actual commission of hostilities or even that a body ofmen should appear in military “array” (referring to attire and orderly arrangement).
The crime of treason, he said, was complete before open warfare commenced. Again,
prosecution lawyers cited the Supreme Court’s opinion in Bollman and Swartwout,
which implied that someone who had not appeared in arms could be guilty of treason
and defined a levying of war as “a body of men . . . actually assembled for the purposeof effecting by force a treasonable purpose.” Under this definition, the prosecution
contended, the armed group of thirty men on Blennerhassett’s Island constituted alevying of war.

18

The Aaron Burr Treason Trial

Lawyers’ Arguments and Strategies—The
DefenseThe defense asserted that Burr’s actions as described in the indictment did not represent a levying of war.

1. The indictment was fundamentally flawed because Burr was notpresent on Blennerhassett’s Island at the time the alleged treasonable act
occurred
Burr’s lawyers insisted that the Constitution narrowly defined treason as levying
war against the United States, and that under this definition, no person could be
guilty of treason unless actually present when the overt act of war occurred. Plotting, planning, or procuring treason did not constitute a levying of war that met thecriteria for the crime of treason. The government’s testimony purporting to show
Burr’s responsibility for the occurrences on the island was therefore irrelevant to
the indictment’s specific charge that Burr had levied war as if he were one of the assembled troops on the island. The defense lawyers denied that Ex parte Bollman andSwartwout established the proposition that a person not present at the scene of theovert act could nevertheless be considered a traitor. That part of the opinion, theyargued, was “obiter dictum,” unnecessary to the decision of the case in which it wasgiven. In any event, there had never been an attempt in the United States to convict
a person of treason who had not been on the spot where the crime took place.

2. Force and military array were essential elements of an act of levyingwar
The defense argued for a restrictive definition of levying war. A mere enlisting of men
or raising and embodying troops was not itself sufficient to constitute an overt actof levying war. Arms were not necessarily military weapons, as rifles and shotguns
were commonly used for hunting in the frontier region. The requirement, Burr’s
lawyers conceded, did not necessarily entail actual force but clearly included an imposing potential force, “a sufficient display of men and means to effect the object byintimidation.” Levying war had to be an act of public notoriety, such as the marching of troops through the country. The assembled men had to be in military arrayand have an unmistakable warlike appearance. According to defense attorneys, theopinion in Bollman and Swartwout, properly understood, supported this meaningof levying war. The defense attorneys therefore contended that the government’s
testimony could not prove that the assemblage on Blennerhassett’s Island amounted
to a levying of war. The court, accordingly, should not permit such evidence to besubmitted to the jury.

19The Aaron Burr Treason Trial

Biographies
John Marshall (1755–1835)
Chief Justice of the United States and presiding circuit judge at Aaron Burr’s trial“It has been my fate,” wrote Chief Justice Marshall in June 1807, “to be engaged in the trial ofa person whose case presents many real intrinsic
difficulties which are infinitely multiplied by
extrinsic circumstances.” At the time of the Burrtrial, Marshall had been Chief Justice of the United States for six years, having been nominated byPresident John Adams and confirmed by the Senate in January 1801, just six weeks before Thomas
Jefferson began his first term as President. Marshall presided at the Burr trial as part of his duties
as the Supreme Court justice assigned to sit on
the U.S. circuit courts of the circuit comprising
Virginia and North Carolina.
Burr’s case, troublesome in itself for raising perplexing questions concerning the law oftreason, was the more vexatious to Marshall forJohn Marshallreopening the quarrel between the Jefferson adPrint by J.H.E. Whitney after Charles
ministration and the federal judiciary, as played
Balthazar Julien Fevret de Saint-Méout earlier in the controversy over Marbury v. min, c. 1889. Library of Congress,
Madison in 1803 and the impeachment of Justice Prints and Photographs Division
Samuel Chase in 1805. No one was more fully[reproduction number LC-USZ628499].
attuned to the awkward dilemma he faced in
conducting this high-profile case. To maintaina posture of strict judicial impartiality was a duty that was at once imperative andexceedingly difficult to fulfill in the highly charged political atmosphere of the time.
Things got off to a bad start a few days after the preliminary hearing in April 1807,
when Marshall attended a dinner given by his friend and neighbor John Wickham,
who had also invited his client Aaron Burr. Although the Chief Justice may not havesuspected that the man he had just ordered to be bound over for trial at the next
court would be a fellow guest, his decision to stay through the dinner was a lapse injudgment for which the Republican press roundly denounced him.
Over the course of the proceedings against Burr, Marshall delivered seventeen
written opinions and several briefer opinions delivered orally. These opinions were

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The Aaron Burr Treason Trial

given in response to motions, mostly by the defense, and after counsel had argued
both sides of the question. Two of the opinions occupy a prominent place in American
constitutional law. One, given on June 13, accompanied his ruling on Burr’s motion
for a subpoena duces tecum to issue to President Jefferson. In granting the motion,
the Chief Justice endeavored to balance the rights of the accused with the executive’s
duty to govern. The other prominent opinion was given on August 31 in deciding
on the motion to exclude further testimony from going to the jury. Marshall upheld
this motion as well, defining the crime of treason under the Constitution in suchnarrow terms as to make conviction difficult—which he believed faithfully reflected
the intention of the framers.
Marshall delivered this opinion on the exclusion of testimony only two days after
close of arguments. He must have written at a furious pace or else begun his draft
while the lawyers were still orating. The finished opinion weighed in at nearly 22,000
words and consumed two-and-a-half hours in delivery. Anticipating the controversy
his opinion would provoke, Marshall portrayed himself as an embattled judge resisting
the popular tide, adhering to duty in the face of great pressure to do otherwise. Afterdelivering the last of his rulings in Burr’s case in late October, Marshall “galloped tothe mountains” for a much-needed vacation. He was relieved to be done “with themost unpleasant case which has ever been brought before a Judge in this or perhaps
in any other country which affected to be governed by laws.” He continued to serve
as Chief Justice until his death in July 1835.

Thomas Jefferson (1743–1826)
President of the United States and head of the executive branch prosecuting Burr
As the nation’s chief executive, Jefferson had an official duty to suppress what he believed to be Burr’s conspiracy and to prosecute its ringleader. He believed Burr was
guilty of treason and that overt acts could be proved, even though the government
had put down the enterprise before open warfare broke out. However, his determination to put Burr on trial for the high crime of treason, and not just for the lesser
offense of conducting war against Spain, has led critics to attribute personal andpartisan animus to the prosecution of Burr. Jefferson’s nearly obsessive interest in thecase, reflected in numerous and lengthy letters to U.S. Attorney Hay, lends credence
to the charge. Although offstage, Jefferson was directly involved in managing thegovernment’s case against Burr.
That the President disliked Burr as an unprincipled intriguer, a man who would
attach himself to whatever party or cause that would advance his unbounded personal ambition, was undoubtedly true. Jefferson was by no means alone in holdingthat opinion, sharing it with many others, including Jefferson’s hated rival, the late
Alexander Hamilton, whom Burr shot and killed in their celebrated duel of 1804.

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The Aaron Burr Treason Trial

Jefferson, so he later stated, had distrusted
Burr ever since Burr had entered national
politics in the early 1790s. Burr proved hisutter untrustworthiness in Jefferson’s eyesby his refusal to acknowledge Jefferson’s
claim to the presidency after both received
the same number of electoral votes in theelection of 1800.
Whatever the interplay of motives
that induced him to pursue the treason
charge, President Jefferson seriously
compromised the case before it began
by declaring in a message to Congress inJanuary 1807 that Burr’s “guilt is placed
beyond question.” This blunder allowed
Burr and his lawyers to construct a plausible case that Jefferson was engaged inThomas Jefferson
a personal vendetta to destroy a hated
political rival. The President unwittingly Published by Pendleton’s Lithography, frommade it possible for the Burr prosecution the original portrait by Gilbert Stuart. Library
to become an indictment and trial of his of Congress, Prints and Photographs Division[reproduction number LC-USZ62-117117].
own administration.
Even without this misstep, formidable
obstacles stood in the way of a treason conviction. Jefferson could not have beenpleased that Burr’s case was to be tried by Chief Justice John Marshall, the judge who
in Marbury v. Madison had stated that the executive acted illegally in withholding ajustice of the peace’s commission. Jefferson and Marshall, both Virginians and distantly related to each other, shared a mutual dislike that seemed to manifest itself inthe recent institutional clashes between the executive and judicial branches. Jeffersoncomplained that the judiciary was a Federalist bastion, intent upon assaulting theworks of Republicanism. The Burr trial soon gave him more reason for complaint.
At the outset Marshall found no probable cause to commit Burr for treason, a rulingthat provoked Jefferson to wonder if the Constitution should be amended to makethe judiciary more accountable to the public, impeachment being “a farce.” While
the grand jury met in June, Chief Justice Marshall granted the defense’s motion fora subpoena duces tecum to issue to President Jefferson, ordering him to produce
certain letters from Wilkinson and other documents. Jefferson regarded this judicial
order as unnecessary, since he was willing voluntarily to provide whatever papers
were required and in fact had already sent them before the subpoena was served.
Privately irritated with the Chief Justice for playing along with Burr’s obvious attempt to embarrass the administration and provoke a contest between the executive

22

The Aaron Burr Treason Trial

branch and judiciary, Jefferson substantially complied with the subpoena. He did so
on his own terms, however, defending the executive’s prerogative to refuse personal
attendance and to decide which papers could be made public.
Upon learning of Marshall’s decision of August 31 upholding the defense’s motion to exclude further testimony, Jefferson wrote: “The event has been what wasevidently intended from the beginning of the trial, that is to say, not only to clear
Burr but to prevent the evidence from ever going before the world.” Jefferson theninstructed Hay to get all the evidence reduced to writing so he could lay it before
Congress, which could decide whether “the defect was in the testimony, in the law, orin the administration of the law” and provide an appropriate remedy. The President
took this step in a message to Congress in October 1807. As for the remedy he had inmind, Jefferson made no public recommendations, though he privately hoped for aconstitutional amendment which, “keeping the judges independent of the Executive,
will not leave them so, of the nation.”

Aaron Burr (1756–1836)
Indicted for treason against the UnitedStates and tried in the U.S. Circuit Court,
district of Virginia
As one of the nation’s foremost attorneys,
Aaron Burr played an active role in his
own defense, by no means content toplace himself fully in the hands of theformidable lawyers he hired to defend
him. In a sense, the accused prisoner waslead counsel, advising and instructing his
team about legal strategy and tactics.
A New Jersey native, Burr was the sonof the second president of the College of
New Jersey (later Princeton) and grandson of the noted theologian Jonathan Edwards. After graduating from the Collegeof New Jersey, he took up the study of law,
but put this aside with the onset of the
War of Independence. As a Continental
army officer, Burr performed with greatvalor, eventually obtaining a commission
as lieutenant colonel with a regimental
command. After the war, he resumed law

Aaron Burr
Print, published by Small, Maynard & Company, c.1899. Library of Congress, Prints andPhotographs Division [reproduction number
LC-USZ62-102555].

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The Aaron Burr Treason Trial

study, obtained his license, and moved to New York, where he began competing with
Alexander Hamilton in the legal and political arenas. Burr’s career in politics began
in 1784 with election to the New York state legislature. In 1791, the legislature elected
Burr to the U.S. Senate, choosing him over Hamilton’s father-in-law. Burr served one
term, moving politically from the middle ground toward the Republicans. He ran
with Jefferson on the Republican presidential ticket in the election of 1796, which
was won by John Adams. Burr then entered the New York Senate, where he built up
a strong political organization that won the state for the Republicans and secured
Burr a place on the ticket again with Jefferson in 1800.
Along with success in politics, Burr had acquired a reputation as a man lacking
in principle, motivated only by expediency and desire to satisfy his large personal
ambitions. He managed to incur the hostility of both Hamilton and Jefferson. The
latter became bitterly suspicious of Burr for not stepping aside when the two received
the same number of electoral votes in the election of 1800, throwing the election
into the House of Representatives. Burr was virtually excluded from a role in the
Jefferson administration and a prospect of succeeding to the presidency. At the sametime his rivalry with Hamilton intensified to the point that Burr issued a challengethat eventuated in a fatal duel in the summer of 1804. With his political career inruins, Burr began forming plans he hoped would bring him glory and fortune in theAmerican Southwest, but instead resulted in his trial for treason in the federal court
at Richmond.
At his preliminary examination on March 31, 1807, Burr signaled his intention
to serve as his own lawyer by addressing the court on the motion to commit him
for treason. When the court session opened on May 22, he aggressively challenged
prospective grand jurors, succeeding in obtaining the removal of two prominent
Jeffersonian politicians he claimed were personally hostile to him. Burr and his
team of lawyers adhered to a strategy of attacking the motives and good faith of
the government prosecuting him and particularly those of the government’s chief
witness, General James Wilkinson. It was Burr’s idea to move for a subpoena duces
tecum commanding President Jefferson to produce a letter from Wilkinson and otherdocuments that the accused claimed were material to his defense.
Chief Justice Marshall’s opinion of August 31 upholding the motion and the jury’s
acquittal the next day allowed Burr to escape the gallows. But the misdemeanor trial
and the motion to commit for treason or misdemeanor charges in another jurisdiction kept him in Marshall’s court for an additional month and a half. Although he
was disappointed with Marshall’s decision of October 20 ordering him to stand trial
in Ohio on the misdemeanor charge of waging war on Spain, Burr knew the government would not pursue the charge.
In the aftermath of the trial, Burr found himself deeply in debt and hounded bycreditors who pursued him for the many unpaid bills from his western enterpriseand subsequent legal proceedings. In June 1808, he embarked for England, remaining

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The Aaron Burr Treason Trial

there and in Europe for four years. Shortly after his return in 1812, he suffered thedeaths of his grandson and daughter within months of each other. He resumed thepractice of law in New York, but despite professional success he remained chronicallyin debt from borrowing money for various schemes. In 1833, Burr married a wealthy
widow, who sued for divorce after he quickly squandered her fortune. The divorce
was granted on the day he died in 1836.

Harman Blennerhassett (1765–1831)
Burr’s associate, indicted for treason by a grand jury of the U.S. Circuit Court, districtof Virginia
Blennerhassett has been called the most“conspicuous casualty” of Burr’s western enterprise, a sad, even tragic, victim of a grandscheme that went awry. Honest, generous,
and trusting to a fault, Blennerhassett was
not the altogether guileless innocent memorably portrayed in Wirt’s famous speech(“Who is Blennerhassett?”) at the trial. He
was an enthusiastic backer of Burr’s plans, awilling recruit to the New Yorker’s army.
Born into an aristocratic Irish family,
Blennerhassett received a good education
and acquired a reputation for learning andculture. During the 1790s he joined an Irish
revolutionary association agitating for independence from Britain. This endeavor got
Harman Blennerhassett
him into trouble with the authorities, which
Miniature portrait, artist unknown, 1796.
led to his decision to emigrate to America in
Blennerhassett Island Historical State Park,
Parkersburg, West Virginia.
1796.
Bringing with him a bride and a substantial family fortune, Blennerhassett eventually settled in the nation’s interior, establishing mercantile partnerships in Marietta, Ohio, and purchasing an island in the Ohio
River, just below present Parkersburg, West Virginia. With his wife, a striking beauty,
he set about creating a sylvan paradise on his island. He erected an imposing mansion, decorated it with expensive furnishings, and constructed bounteous gardens
on the surrounding grounds.
Burr and Blennerhassett first met in early May 1805, when Burr stopped at theisland during his western trip of that year. Burr saw in the Irishman a potential financial backer, but he was probably more interested in the island as a staging point

25

The Aaron Burr Treason Trialor redoubt for his contemplated expedition. For his part, Blennerhassett was flatteredby the attentions of a man who had been so prominent in American affairs. He wasalso attracted by the prospect of glory and riches, which he needed to replenish after
sinking a large portion of his inherited wealth in building such a lavish estate.
By early 1806, Blennerhassett had become an eager adherent, apparently regarding Burr’s vague plans involving a military expedition against Spain. Blennerhassettadvanced money, extended credit, and wrote newspaper essays that spoke of marchingon Mexico and hinted at the breakaway of the west. In late summer of that year, Burrmade another visit to the island, which by then had become a center of recruiting
activities and was to be an embarkation point for men, boats, and supplies. Burr left
the island on September 1, Blennerhassett remaining behind to supervise preparations
for an eventual departure to join the expedition’s leader downriver. These activities
excited the attention of the local authorities, but Blennerhassett and a band of about
thirty men and four boats slipped away on the night of December 10. The next day
the Wood County militia looted Blennerhassett’s mansion and outbuildings.
Blennerhassett succeeded in joining Burr, and the two were subsequently arrested
in the Mississippi Territory. While Burr was taken to Richmond, Blennerhassett was
released and remained in the Mississippi Territory. In July 1807, on his way back upriver to check on the condition of his island home, he was again arrested and brought
to Richmond. The grand jury in the U.S. circuit court in Richmond had returned anindictment of Blennerhassett on a charge of treason and a misdemeanor charge ofwaging war on Spain. During Burr’s trial, Blennerhassett was confined to the state
prison, where he wrote letters to his wife and kept a journal that throws much lighton the proceedings. After Burr’s acquittal for treason, the U.S. attorney chose not toproceed with Blennerhassett’s trial. Chief Justice Marshall later ordered Blennerhassett, along with Burr, to stand trial in Ohio on misdemeanor charges of waging war
on Spain, but the government did not prosecute the case.
Spared the hangman’s noose, Blennerhassett was nevertheless a broken man, his
fortune depleted, his estate sold for debts, and with scant likelihood of being repaid
the funds he had advanced to his erstwhile friend and chieftain. He subsequently
moved to Natchez, Mississippi, where he bought a cotton plantation that never proved
profitable. After ten years, he sold the plantation and moved first to New York andthen to Montreal, where he practiced law for three years. Following further disappointment, Blennerhassett in 1822 went back across the Atlantic to England. The
former master of an enchanted isle in the Ohio River spent his remaining years in
the home of a kindly sister.

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The Aaron Burr Treason Trial

James Wilkinson (1757–1827)
General of the army and governor of Louisiana, who was the government’s chief witness
against Burr
An inveterate adventurer, intriguer, andseeker of glory and fortune, James Wilkinson found himself as much on trial at Richmond as did the man he accused of being a
traitor to the United States. Wilkinson rosefrom middling circumstances as the sonof a Maryland farmer to prominence as aContinental army officer during the War
of Independence. His rise in status was accompanied by a reputation for self-promotion. After the war he moved to Kentucky,
set himself up in mercantile business, andbegan pressing for Kentucky’s separationfrom Virginia while promising Spain toprotect and extend its American empire.
As a Spanish agent, he received an annual
pension and unlimited trading rights on
James Wilkinson
the Mississippi River. In the 1790s, he reenChalk drawing by Charles Balthazar Julien
tered the army, eventually becoming comFevret de Saint-Mémin. National Portrait
manding general, all the while continuing
Gallery, Smithsonian Institution.
in Spanish service. (Wilkinson’s activities
as a Spanish agent, frequently rumored during his lifetime, were confirmed after the
opening of the Spanish archives a century later.)By 1805, Wilkinson was governor of the new territory of Louisiana and in communication with Burr, whom he had first encountered as a fellow officer during
the Revolutionary War. He imparted his great knowledge of the Southwest to Burr,
doubtless appealing to Burr’s hopes for glory and fortune to be made in this politically unstable region. How deeply Wilkinson was involved in Burr’s schemes may
never be known, but their relationship was close and secretive enough that they
communicated in cipher. In October 1806, Wilkinson informed President Jeffersonof a coded letter evidently from Burr detailing his intentions to lead an army down
the Mississippi. In thus exposing a plot with the apparent design to dismember theunion, Wilkinson hoped to protect himself while winning glory as a national hero.
Instead, he emerged from the Burr trial with his dubious reputation badly if not irretrievably damaged.

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The Aaron Burr Treason Trial

As the government’s chief witness against Burr, Wilkinson arrived in Richmondin mid-June to testify before the grand jury. Following a dramatic courtroom confrontation between the accused and his accuser, Burr and his defense team embarked
on a relentless and effective campaign to undermine Wilkinson’s credibility, focusing particularly on the general’s arbitrary and overbearing conduct in arresting
suspects and potential witnesses in New Orleans during the weeks following public
disclosure of Burr’s conspiracy. In the end, the grand jury indicted Burr, but nearly
half the jurors wanted to indict Wilkinson as well for “misprision” (concealment)of treason. One of these jurors was John Randolph, the grand jury foreman, whospoke of Wilkinson as a “mammoth of iniquity” and as “the most finished scoundrel
that ever lived.” After his grand jury appearance, Wilkinson was not called again to
testify until October, after Burr’s acquittal on the treason and misdemeanor charges
and during the motion to have Burr prosecuted for treason in another federal court.
Again, Burr’s lawyers put Wilkinson on the defensive, forcing him to make damaging
admissions that revealed his attempt to conceal his relationship with Burr. By thenthe exasperated U.S. attorney had lost all confidence in Wilkinson. After the trial,
Wilkinson was subjected to investigations and courts martial relating to his Spanish
dealings and conduct in the army. He survived these, and during the War of 1812 he
was put in charge of a plan to invade Canada. This proved to be a disaster, resulting
in the loss of his military command and a further court martial. Although he was
acquitted, the army no longer had any use for his services. He settled in New Orleans,
wrote his memoirs, and spent the last three years of his life in Mexico City in pursuitof Texas land claims.

Luther Martin (1748–1826)
Maryland lawyer who was Burr’s lead counsel
Renowned as among the nation’s foremost trial lawyers, Luther Martin defended
his close friend Aaron Burr with an intensity animated by strong personal dislikeof Thomas Jefferson. Like Burr, Martin attended the College of New Jersey (later
Princeton) and entered the legal profession. In 1778, he was appointed Maryland’s
first attorney general, a post he held intermittently during the next forty years. He
was a delegate to the Federal Convention of 1787, but, unhappy with the Constitution, became an outspoken opponent. During the 1790s his enmity toward Jefferson
inclined his politics to the Federalists. Just two years before Burr’s trial, Martin had
performed brilliantly in obtaining an acquittal for impeached Supreme Court Justice Samuel Chase. Burr, presiding at the impeachment trial as Vice President, hadwatched in admiration. Martin managed to stay in top form professionally over many
years despite habitual drunkenness—“Lawyer Brandy Bottle,” as he was known—andcareless personal appearance.

28

The Aaron Burr Treason Trial

Martin arrived in Richmond in late
May 1807, nearly a week after the grandjury convened. He rented a house near
the Capitol, where Burr (after a stint in
the state penitentiary) was kept underguard during the treason trial. While thegrand jury met, Martin unveiled his defense strategy of attacking the Jefferson
administration, accusing the government
and the President in particular of conducting a partisan and personal vendetta
against his client. He amply displayed his
gift for invective during the argument of
the motion for a subpoena to be issued to
the President. Jefferson, said Martin, hadproclaimed Burr “a traitor in the face ofthat country, which has rewarded him. He
Luther Martin
has let slip the dogs of war, the hell-houndsof persecution, to hunt down my friend.” Photoprint of painting by David Edwin. Library of Congress, Prints and Photographs
For his part, Jefferson privately wondered if
Division [reproduction number LC-USZ62Martin should be committed “as particeps
83712].
criminis with Burr” for having known inadvance of the latter’s treasonable enterprise. Such a move would “put down thisunprincipled & impudent federal bull-dog.”
At the treason trial, Martin gave the closing argument on the motion to exclude
the evidence. Speaking for fourteen hours on August 28 and 29, he gave the second
most famous speech of the Burr trial after Wirt’s, while indisputably earning the top
prize for lawyerly long-windedness. Repetitious and haphazardly organized as he was,Martin displayed immense learning, effectively drawing a contrast between the strict
definition of American treason embodied in the Constitution and the old English
doctrine of constructive treason and the rule that in treason all are principals. These,
he said, had “originated in the worst of times, in the most tyrannical reigns, and whenthe most corrupt and wicked judges sat in the English courts.” With respect to Burr’s
expedition, Martin contended that the government had offered no proof of an overt
act of levying war—this was “will o’ the wisp treason . . . said to be here and there andeverywhere, yet it is nowhere.” Revisiting a favorite theme, he implicitly censured anadministration that had excited “public prejudices” against Burr to the point that ajury, even “if satisfied of his innocence, must have considerable firmness of mind topronounce him not guilty.”
After the Burr trial, Martin continued to be a highly sought after counselor, arguing a number of cases in the Supreme Court. His last appearance in a major case

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The Aaron Burr Treason Trial

occurred in 1819, when as Maryland’s attorney general he represented the state in
the great bank case McCulloch v. Maryland. Shortly afterward, Martin suffered anincapacitating stroke that rendered him a helpless derelict for his remaining years. In
1823, he was taken in by Burr, with whom he lived during the remaining three yearsof his life.

John Wickham (1763–1839)
Virginia lawyer representing Aaron Burr
On a defense team of six eminent lawyers,
John Wickham was second only to LutherMartin as principal counsel for the accusedtraitor. Wickham was the acknowledged
leader of the glittering Virginia bar andhad a reputation for a quick legal mind,
polished manners, and a cultivated wit. A
New York native, Wickham was imprisoned during the War of Independence
because of his family’s Tory sympathies.
He was released to the care of an uncle, a
Virginia clergyman, with whom he went
to live and study law. He was admitted
to the bar in 1786 and soon thereafter
moved to Richmond, where he practiced
in the superior courts. After his first wife
died, Wickham married the daughter ofa prominent Richmond physician. Theirhome near Capitol Square was the center
John Wickhamof an elegant social circle. Nearby was the
Painting, unidentified artist. National Porhome of John Marshall, a good friend andtrait Gallery, Smithsonian Institution.
(before his elevation to the bench) rival at
the bar. As the host of a celebrated dinnerthat took place a few days after the preliminary hearing in April 1807, Wickham committed an impropriety in extending an invitation to both Marshall and Burr.
Wickham was engaged on Burr’s behalf throughout the proceedings from theinitial hearing in the early spring through the commitment hearing in the fall of 1807.
From the beginning he aggressively insisted that overt acts had to be established anddenied the relevance of evidence that did prove such acts. At the treason trial Wickham led off for the defense in speaking to the motion to exclude further testimony.
In a speech that commenced on August 20 and concluded the next day, Wickham

30

The Aaron Burr Treason Trialargued that under the Constitution no person could be guilty of levying war unlesspersonally present at the commission of the overt act. He also contended that theindictment against Burr was faulty insofar as it charged him with personally levying
war on Blennerhassett’s Island. Under this indictment, said Wickham, evidence that
Burr was the procurer of treason was irrelevant. Chief Justice Marshall adopted muchof Wickham’s argument and reasoning in his seminal opinion of August 31.
The Burr trial was the high point of a distinguished legal career. Wickham neverheld public office, content with the private practice of law and life as an affluent Virginia gentleman. He entertained prominent visitors to Richmond, including noted
American statesmen and English literary figures.

George Hay (1765–1830)
U.S. attorney for the District of Virginia, who represented the government in prosecuting Burr
Hay had a reputation as a competent if not brilliant lawyer. Born in Williamsburg,
Virginia, son of a cabinetmaker, Hay later moved to Albemarle County, where heread law. During the 1790s he established a successful practice in Petersburg andparticipated in Jeffersonian politics. In 1799, he attracted attention with a pamphlet
defending freedom of the press and attacking the sedition law. The next year he defended James T. Callender in his sedition trial before Judge Chase in the U.S. Circuit
Court at Richmond. For this and other services on behalf of the Republican cause,
President Jefferson nominated Hay as U.S. attorney in 1803. On the eve of the Burrprosecution, Hay suffered the loss of his first wife.
From the outset, Hay faced a formidable task convicting Burr of treason, ironically because the administration’s prompt suppression of the enterprise before it
matured into open warfare significantly increased the difficulty of proving overt
acts. Aware of this obstacle, the U.S. attorney dutifully conducted a prosecution thatPresident Jefferson regarded as top priority. Jefferson, indeed, took an unusually active role behind the scenes, dispensing instructions and recommendations to Hay
in a barrage of letters written from Washington and Monticello. Far from regarding
the President’s missives as a distracting intrusion, Hay probably welcomed all theadvice he could get. For the preliminary hearing, the President sent Attorney General
Caesar A. Rodney to assist Hay. After Rodney returned to Washington, William Wirt
and Alexander Macrae had joined the prosecution. Hay and his two co-counsel had
to contend against a defense team of five lawyers of exceptional talent, not counting
Burr himself.
At the preliminary hearing, Hay failed to persuade Chief Justice Marshall tocommit Burr for treason. This was the first of a series of prosecution defeats anda portent of the eventual outcome. Although the grand jury’s treason indictment

31

The Aaron Burr Treason Trial

against Burr in June was a significant victory, the defense by then had managed to
seize the initiative by attacking the government and particularly its chief witness,
General James Wilkinson. At the trial in August, Hay opened the government’s caseby arguing that conviction for an overt act of treason did not require the actual commission of hostilities or even that a body of men should appear in military array.
Common sense and considerations of national safety, he said, “certainly required thatthe crime of treason should be completed before the actual commission of hostilities
against the Government.” Hay reiterated this point in his speech of August 26 and 27
on the motion to exclude further testimony, which he introduced by acknowledging
to the court that he could not “instruct you by my learning, amuse you by my wit,make you laugh by my drollery, nor delight you with my eloquence.” He also placed
great emphasis on the preservation of the principle of trial by jury, observing that
it was “a most dangerous proposition” for a judge to encroach on the jury’s proper
province of weighing all the evidence. Referring to an impeachment article against
Justice Chase concerning his conduct in an earlier treason trial, Hay appeared to bewarning Chief Justice Marshall of what might happen if he granted the motion to
exclude evidence. After the Burr trial, Hay married a daughter of James Monroe, withwhom he had formed a close association. He continued to serve as U.S. attorney until
1816, when he resigned to enter the Virginia legislature. After a term in the Houseof Delegates and several terms in the state senate, he moved his family to Monroe’s
northern Virginia estate. He spent much time in Washington, D.C., practicing law
and advising President Monroe. In 1825, President John Quincy Adams nominatedHay as U.S. district judge for the Eastern District of Virginia, an office he held until
his death. In this capacity, he also sat with Chief Justice Marshall on the U.S. Circuit
Court.

William Wirt (1772–1834)
Assisted U.S. Attorney George Hay in prosecuting Burr
A Maryland native, Wirt was orphaned at a young age and raised by an aunt. He
moved to Culpeper County, Virginia, in 1792, and commenced the practice of law.
Ambition, talent, and a congenial personality brought him early success, despite adisposition to prefer the pleasures of social life to professional toil. His practice spreadto neighboring Albemarle County, where he formed valuable connections through his
marriage to the daughter of a friend of Thomas Jefferson. Widowed within a few years(he later remarried), Wirt moved to Richmond, where in May 1800 he served with
Hay in representing James T. Callender in his trial for sedition under Judge Samuel
Chase. His argument against the constitutionality of the sedition law enhanced his
legal reputation. Having won distinction as a lawyer, Wirt exhibited a literary flair
in a series of pen portraits published in 1803 as The Letters of a British Spy. Among

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The Aaron Burr Treason Trial

the subjects of these anonymous sketches
were John Marshall, Edmund Randolph,
and John Wickham, with whom Wirt waslater associated at the Burr trial. When hejoined the prosecution team in 1807, Wirt
had recently returned to private law practice after serving several years as judge of
Virginia’s court of chancery for the eastern
district.
At the trial Wirt distinguished himself in a losing cause, proving himself
more effective than the plodding Hay. His
captivating eloquence and wit provided
entertaining interludes to the often-dry
William Wirt
legal disquisitions of his fellow lawyers.
His most important speech occurred atEngraving, St. Mémin Collection of Portraits,
the climax of the trial on August 25. He published by E. Dexter, New York, 1862. Library of Congress, Prints and Photographspresented a well-reasoned argument porDivision [reproduction number LC-USZ62traying Burr as the mastermind who set in
119242].
motion the great treasonable enterprise, of
which the assemblage on Blennerhassett’s
Island formed a part. Citing the Supreme Court’s opinion in Ex parte Bollman andSwartwout, Wirt insisted that Burr was a principal in treason even though he was not
physically present on the island. To suggest that only those on the island could be
principals, while the absent master plotter was a mere accessory, was absurd. “Who is
Blennerhassett?” asked Wirt, introducing a passage that became a classic of American
oratory. With his ample literary gifts, the lawyer spun a riveting tale of corrupted
innocence, of Blennerhassett’s peaceful, tranquil life on his Eden in the Ohio River
until the “serpent entered its bowers.” Burr escaped conviction as a traitor, but Wirt
forever linked him with the Biblical story of fallen humanity.
Wirt won enduring fame for his performance at the Burr trial, but in later years
he achieved even greater prominence in law and literature. In 1817, President Monroe appointed him U.S. attorney general, a post he held for twelve years. The same
year he published his celebrated Sketches of the Life and Character of Patrick Henry.
As attorney general and as private counsel, Wirt made frequent appearances in theSupreme Court. He argued some of the most important cases of the Marshall Court,
including McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), and the Cherokee
cases of 1831 and 1832. Chief Justice Marshall praised Wirt’s “judgment and genius,”
adding: “In the brilliant play of imagination, in fertility of invention, I should hesitate
were I required to name his equal.” His opposition to the Jackson administration led
to his nomination as president by the Anti-Masonic party in 1831.

33

The Aaron Burr Treason Trial

Media Coverage and Public Debates
In ordinary circumstances, newspaper coverage of the early federal courts, even theSupreme Court, was infrequent. Although they paid much attention to the operationsof the federal government, newspapers focused almost exclusively on proceedings inCongress and communications from the executive departments. Whole terms mightpass without so much as a mention of a federal court case. This is understandable,
for most legal cases are private civil suits of no interest to anyone but the parties
themselves. Not surprisingly, the cases that did attract popular interest were usuallycriminal, such as robbing the mail and counterfeiting notes of the Bank of the UnitedStates. These were the most common federal crimes.
Aaron Burr’s case was of a different order of magnitude, even for a criminal case.
Treason was the highest crime of all. The revelations of the conspiracy captivated
the American public’s attention from late 1806 through 1807. Newspaper publishers
immediately recognized an opportunity to boost circulation. They eagerly tried to
gratify the public’s interest by filling their columns with every known fact or rumor
relating to Burr’s enterprise and with detailed accounts of the ensuing legal proceedings.
Because the trial took place in the summer, when Congress and the state legislatures were not in session, newspapers had ample space to print not only the formal
court proceedings but also editorials, letters to the editor, and other commentaries
reflecting the paper’s political point of view. Three Richmond newspapers fully
reported the case, beginning with the preliminary examination in the spring andcontinuing through its final disposition six months later: the Enquirer, edited byThomas Ritchie; the Virginia Argus, edited by Samuel Pleasants; and the Virginia
Gazette, edited by Augustine Davis. The Enquirer and Virginia Argus were supportersof the Jefferson administration, while the Virginia Gazette was Federalist in its politics.
The papers hired reporters to take stenographic notes of the lawyers’ arguments andjudge’s opinions in an attempt to reproduce them verbatim. After initial publicationin the newspapers, the trial proceedings were published separately in book form.

Newspaper articles“Communication”—Virginia Argus, April 7, 1807
The writer of this “communication” was most likely Samuel Pleasants, editor of
the Virginia Argus. This piece was the first public reaction to the celebrated dinner
hosted by John Wickham.

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The Aaron Burr Treason Trial

It is reported, and we are sorry to say, that the fact appears indisputable, that Col.
Aaron Burr and the Chief Justice of the U. States, dined together at Mr. Wickham’s,
since his examination, and since his honor had himself solemnly decided that there
were probable ground to believe him guilty of a high misdemeanor against the U. S.
We acknowledge that the rites of hospitality ought not to be refused to this unfortunate gentleman by those who believe him innocent; but confess our astonishmentthat men, whose intellects are so penetrating as those of Mr. Wickham and Mr.
Marshall, did not perceive the extreme indelicacy and impropriety of such respect
being paid him by the Judge, who is to sit hereafter on his trial, and who, by his own
opinion oﬃcially pronounced, had aﬃxed a stigma on his character, which can only
be wiped oﬀ by his future acquittal.

Editorial—United States Gazette (Philadelphia), reprinted in the
Virginia Gazette, April 29, 1807
Like his fellow journalists, Virginia Gazette editor Augustine Davis filled his columns
with stories and articles clipped from other newspapers throughout the country andabroad. To counter Republican criticism of Marshall’s attendance at Wickham’s
dinner, Davis inserted this piece from a Federalist newspaper in Philadelphia.

The democratic papers of Richmond have commenced a most furious attack upon
the character of Chief Justice Marshall. They say that his conduct has been “grossly
indecent,” that it is “a disgrace to the country” . . . that it has “excited sentiments of lively
indignation,” &c. &c. It will immediately be asked what has the Chief Justice done
to merit their accusations? Why, forsooth, he dined with a gentleman in Richmond,and col. Burr was at the table!!! and the Chief Justice neither kicked Col. Burr outof doors, nor ran away himself; but sat and ate his dinner as deliberately, and to allappearance with as little concern as though perfectly unconscious that the presenceof Col. Burr could either contaminate his principles, or blast his reputation! This is
the head and front of his oﬀending.

35

The Aaron Burr Treason Trial“Communication”—Virginia Argus, June 17, 1807
This satirical piece nicely captures the comic opera aspect of the Burr trial embodied
in two of its most colorful characters: General James Wilkinson, the prosecution’schief witness, and Luther Martin, Burr’s lead lawyer.

DRAMATIC INTELLIGENCEThe Drama under rehearsal at the Richmond Theatre, ﬁrst reported to be a Farce,
is now said to be of the new species of Melo Drama.
The arrival of Mr. Wilkinson, a performer of long standing, has excited muchcuriosity–the managers are sure of full houses from some time to come.
The engagement of Mr. Martin, from the Theatre at Baltimore, appears to havebeen made upon a supposition that the taste of the Richmond audience was for Low
Comedy–from the reception of this actor, it appears that there was some mistake inthis aﬀair.

Letter from John Brockenbrough, July 11, 1807—Virginia Gazette, July
15, 1807
Brockenbrough, one of the grand jurors, wrote in response to a published piece by
Munford Beverley, also a member of the grand jury. Beverley had stated that sevenjurors, including himself and Brockenbrough, had voted to present James Wilkinson
on three charges: high treason, misprision (concealment) of treason, and violating
the Constitution.

In a controversy between General Wilkinson or his friends and Mr. Beverley, I
can certainly feel no disposition to interfere. But as Mr. Beverley has chosen, in his
statement of the enquiry into General Wilkinson’s conduct by the Grand Jury, tointroduce my name into the newspapers, I deem it a duty to myself to relate brieﬂy thefacts of the case as far as they concern me. The very strange misconception involvedin this aﬀair I cannot comprehend, and I must therefore leave it to be explained byothers.
Whatever may be my impressions respecting General Wilkinson, I did not votefor presenting him on a charge of High Treason, for no vote on that question was takenby the Grand Jury, to my knowledge.
On the motion to present him for misprision of treason, I was of opinion, after

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The Aaron Burr Treason Trial

the discussion of the subject, that the evidence did not warrant the presentment, andconsequently I voted against it.
For his infraction of the Constitution I voted to present him, because I thought
the oﬀence came completely within the jurisdiction of the Court of this District.

Editorial—United States Gazette (Philadelphia), reprinted in the
Virginia Gazette, September 30, 1807
This editorial from a Federalist newspaper responds to attacks on Marshall and the
judiciary by censuring the Jefferson administration for disregarding the rights of thepeople in putting down the Burr conspiracy.

The prevailing fashion in this country is now to run down the Judicial authority
and attempt to merge it in that of the executive. If the executive declares that a man
is guilty of treason, and afterwards puts him upon his trial before a court and jury,
the democrats will not allow that court and jury to do any thing more or less thanto conﬁrm the sentence of the executive and execute the oﬀender. This they consider
as maintaining the rights of the people.
While the democratic faction are thus feelingly alive to what they aﬀect to consider as usurpation on the part of the Judiciary, they are perfectly unconcerned at themost enormous and unexampled usurpations on the part of the executive. History
will hardly furnish an example of such oppressive tyranny as has been practised under
the administration of Mr. Jeﬀerson towards a number of men who were supposed
to be concerned in the schemes of Col. Burr. In England damages have been given
to the amount of ten thousand pounds for arresting and detaining a man for a few
hours, under a general warrant, issuing from the cabinet of the king. In the UnitedStates, and under the administration of Mr. Jeﬀerson, several men have been arrested
without any warrant at all; hurried away from their friends under circumstances of
the aggravated cruelty and barbarity; forced on board of crazy vessels, and in thewinter season transported to the distance of several thousand miles; and after being
landed, sent under military escort from one post to another to avoid the process of
the laws of the country; all this in a time of profound tranquillity–and for what?
Why, for nothing at all, except for not having the good fortune to be agreeable to
Mr. Jeﬀerson and his oﬃcers; for upon examination it was found that against someof them the government had not even an accusation to bring, and against none ofthem were they able to substantiate any charge whatever.
Yet such monstrous usurpation, so destructive of every principle of civil liberty,
is not thought worthy of even a comment by those who profess to be the exclusive
champions of the rights and liberties of the people.

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The Aaron Burr Treason Trial

Editorial—Virginia Argus, December 4, 1807
In the aftermath of Burr’s acquittal, Republican newspapers bitterly denounced
Chief Justice Marshall, accusing him of manipulating and twisting the law to allow
Burr to escape on a technicality. Their displeasure prompted proposals, such as that
advocated here, to amend the Constitution by providing for the removal of federal
judges at the request of a majority of both houses of Congress. The editorial echoes
Jefferson’s remark, following the failure to convict Justice Samuel Chase in 1805,that impeachment as a means of removing bad judges was a “farce.” Despite thefuror over the Burr trial, Congress did not act upon proposals to make easier theremoval of federal judges.

As the General Assembly of Virginia will commence their session on Monday
next, we take the liberty of recommending to their particular attention the important
subject of the Judiciary of the United States.
The extraordinary proceedings in the case of AARON BURR . . . clearly shewthat an independent Judiciary (that is to say, a Judiciary not controled by the laws,
and above the fear of violating them) is a very pernicious thing. That the federal Judiciary is, in this sense of the word, independent, is, perfectly certain; since no power
at present exists by which it is probable a Judge could be punished even for palpable
treachery to his country and wilful perversion of the law; a trial before the supreme
court of impeachments being only a solemn and expensive farce.
Every friend of a free government must wish the members of the Judiciary to
be independent of all improper inﬂuence; to be free from the smallest suspicion of
being governed by fear, favor, or aﬀection; and to enjoy salaries suﬃcient to set them
far above the temptation of bribery or corruption.
But this desirable independence of the Judges is very diﬀerent from that whichplaces them above the law; enabling them not only to legislate by their decisions, but
to vary from and dispense with those decisions, whenever it suits their purposes.
It is evident that in delivering his opinions in the case of Burr, Judge Marshallmust have known that he possessed the latter of these two species of independence;that he felt himself to be legislating on the subject of treason, and even dispensing
with the law which the supreme court of the United States had previously declaredon the same subject; that as he looked down with contempt on the opinions of thepeople, so also he was conscious of being above the reach of punishment.
But such a state of things ought not to be tolerated in a free country. No person
should be above the law;–and, especially those who interpret and apply it to the casesof others should be compelled to obey it strictly themselves. True it is that a Judgeought not to be punished for an error of opinion, where that error is not produced by
an improper biass. But where the opinions of a Judge are found to be continually or

38

The Aaron Burr Treason Trialsystematically hostile to the liberties of the people, or injurious to their safety, eventhough no proof of corrupt motives can be exhibited against him, he ought to be
removed from oﬃce.
Oﬃces ought not to be considered as the property of individuals, but of the public;
and those who ﬁll them are only trustees for the general good. They do not hold theirhonors and salaries for their own sakes; that they may live at ease and fatten on thetreasury; but merely for the purpose of performing useful and laborious duties, forwhich they are entitled to, and ought to receive, an adequate compensation. A removalfrom oﬃce ought not therefore to be considered as a punishment for a crime; neither
ought it to take place in those cases only where a crime has been committed.
A want of skill and knowledge in the law, a defect of understanding, or thepossessing, and acting under the guidance of erroneous and dangerous principles,
are all good and suﬃcient reasons for removing a Judge from oﬃce–If the point isfrequently otherwise considered, it must arise from the mistaken impressions generally entertained concerning the independence of the Judiciary, or from the ideathat the oﬃce is the property of the Judge who holds it, and that he ought not to be
deprived of his property without conviction of a crime; opinions which are certainly
contrary to those laid down in the Bill of Rights of Virginia as the foundation of all
good government.
Yet, for none of these glaring defects, can a Judge be removed from oﬃce, as theconstitution of the United States now stands.
It is time, therefore, that an amendment should be proposed authorising andrequiring the President to remove any Judge from oﬃce at the request of a majority of both houses of Congress. Such an amendment could not have the eﬀect of
producing any improper inﬂuence on the minds of the Judges, or of diminishing
their legitimate and useful independence. A good Judge would never be prevented fromdoing justice by the fear of losing his place, and a bad one ought to be subject to thewholesome concord of his country. The opinion of the majority of both houses ofCongress would generally be on the side of justice; and, if it sometimes erred, it isbetter in a free country that the will of the people should prevail, (the government
being instituted for them and to be administered according to their wishes) rather than
the will of a few persons, whose interest (being in conﬂict with that of the great bodyof the community,) will much oftener lead them to do wrong.
All human institutions are imperfect; but the proposed amendment, though it
would not be altogether free from evil, would, most assuredly, be a great and important improvement to the constitution of the United States.
We hope, therefore, that the General Assembly of Virginia, always ardent andactive in the cause of republicanism, will not be hindmost on this occasion; but willtake up the subject early in the session, and propose the amendment as speedily as
possible.

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The Aaron Burr Treason Trial

Historical Documents Related to the BurrCase
All of the documents are transcribed as they appear in the original. The italicizedtext provides historical background and context for understanding the documents.

The “cipher letter” to James Wilkinson, July 22–29, 1806
This celebrated document was the key piece of evidence linking Aaron Burr directly to the act of treason for which he was subsequently charged. In October 1806,
Wilkinson sent a translated copy of the letter to President Jefferson, setting in motion the administration’s efforts to suppress the conspiracy and to prosecute Burr.
As legal evidence, the cipher letter had problems at the outset, however, when Chief
Justice Marshall denied that it showed probable cause to commit Burr’s associates,
Bollman and Swartwout, or Burr for treason. In subsequent testimony, Wilkinson
admitted altering this version of the letter by striking out the first sentence, apparently to disguise his own close involvement with Burr. To historians, the cipher letter
presents a documentary puzzle that will likely never be fully resolved. Although theletter was long thought to have been written by Burr, no copy exists in his hand. A
copy does exist in the hand of Jonathan Dayton, another Burr associate and former
Speaker of the House of Representatives. The best informed scholarly opinion now
holds that Dayton wrote the cipher letter that Wilkinson received, substituting it
for one that Burr had written. The bombastic language of the letter contrasts with
Burr’s unadorned style. Other internal evidence, as well, casts doubts on Burr’s authorship of the letter. For example, Burr almost certainly did not intend to bring his
daughter and ailing grandson (see the third paragraph) with him on a dangerous
western expedition. Another odd characteristic of the letter is the switch from first to
third person in references to Burr.
[Document Source: Political Correspondence and Public Papers of Aaron Burr,eds., Mary-Jo Kline and Joanne Wood Ryan, 2 vols. (Princeton, N.J., Princeton
University Press, 1983), 2: 986–87.]

Your letter post marked 13th May, is received. I have at length obtained funds,
and have actually commenced. The eastern detachments, from diﬀerent points andunder diﬀerent pretence, will rendezvous on Ohio on 1 November.
Every Thing internal and external favor our view. Naval protection of England issecured. Truxton is going to Jamaica to arrange with the admiral there and will meet

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The Aaron Burr Treason Trial

us at Mississippi. England, a navy of the United States ready to join, and ﬁnal orders
are given to my friends and followers. It will be a host of choice spirits. Wilkinson
shall be second to Burr only and Wilkinson shall dictate the rank and promotion of
his oﬃcers.
Burr will proceed westward 1 August–never to return. With him go his daughterand grandson. The Husband will follow in October with a corps of worthys. Send
forthwith an intelligent and conﬁdential friend with whom Burr may confer. He shallreturn immediately with further interesting details. This is essential to concert andharmony of movement. Send a list of all persons known to Wilkinson westward of
the mountains who could be useful, with a note delineating their character. By yourmessenger send me 4 or 5 of the commissions of your oﬃcers which you can borrow
under any pretence you please. They shall be returned faithfully. Already an order tothe contractor to forward 6 months provisions to points you may name. This shallnot be used till the last moment, and then under proper injunctions.
Our project my dear friend is brought to the point so long desired. I guarantee
the result with my life and honor, with the lives, the honor and fortune of hundreds,
the best blood of our country.
Burr’s plan of operation is to move down rapidly from the falls on ﬁfteenth
November, with the ﬁrst 500 or 1000 men in light boats now constructing for that
purpose; to be at Natches between the 5 and 15 December, there to meet you; thento determine whether it will be expedient in the ﬁrst instance to seize on or pass by
B. R. On receipt of this send me an answer. Draw on me for all expenses.
The people of the country to which we are going are prepared to receive us--theiragents, now with me, say that if we will protect their religion and will not subject
them to a foreign power, that in three weeks all will be settled.
The gods invite us to glory and fortune. It remains to be seen whether we deserve
the boons.
The bearer of this goes express to you. He will hand a formal letter of introduction to you from me.
He is a Man of inviolable honor and perfect discretion, formed to execute rather
than to project–yet capable of relating facts with ﬁdelity and incapable of relatingthem otherwise; he is thoroughly informed of the plans and intentions of [space]
and will disclose to you as far as you shall enquire and no further. He has imbibed areverence for your Character and may be embarrassed in your presence–put him atease, and he will satisfy you.
Doctor Bollman equally Conﬁdential better informed on the subject & moreenlightened will hand this duplicate.

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The Aaron Burr Treason Trial

Marshall’s opinion (excerpts), U.S. Circuit Court,
Virginia, June 13, 1807
Following four days of acrimonious debate, John Marshall delivered his opinion
on Burr’s motion for a subpoena to President Jefferson and two other government
officers. The subpoena in this instance was not just an order to appear and testify,
but a subpoena “duces tecum” (“bring with you”) commanding the person to bringcertain documents the defendant believed to be material to his defense. Marshall
had hoped in vain that the parties would come to an agreement to produce therequested documents without the necessity of issuing a subpoena. In this excerpt
the Chief Justice considered the prosecution’s objection that until a grand jury returned an indictment an accused party was not entitled to subpoenas. After a brief
exposition showing that principle and practice favored the right of the accused toprepare for his defense as soon as his case was in court, the Chief Justice turned to
the Constitution.
[Document Source: United States v. Burr, 25 Fed. Cases 32–38.]

The constitution and laws of the United States will now be considered for the
purpose of ascertaining how they bear upon the question. The eighth [sixth] amendment to the constitution gives to the accused, “in all criminal prosecutions, a rightto a speedy and public trial, and to compulsory process for obtaining witnesses in
his favor.” The right given by this article must be deemed sacred by the courts, andthe article should be so construed as to be something more than a dead letter. Whatcan more eﬀectually elude the right to a speedy trial than the declaration that theaccused shall be disabled from preparing for it until an indictment shall be foundagainst him? It is certainly much more in the true spirit of the provision which secures to the accused a speedy trial, that he should have the beneﬁt of the provision
which entitles him to compulsory process as soon as he is brought into court. Thisobservation derives additional force from a consideration of the manner in which
this subject has been contemplated by congress. It is obviously the intention of thenational legislature, that in all capital cases the accused shall be entitled to process
before indictment found. The words of the law are, “and every such person or persons
accused or indicted of the crimes aforesaid, (that is, of treason or any other capitaloﬀence,) shall be allowed and admitted in his said defence to make any proof thathe or they can produce by lawful witness or witnesses, and shall have the like processof the court where he or they shall be tried, to compel his or their witnesses to appear at his or their trial as is usually granted to compel witnesses to appear on theprosecution against them.”

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Marshall proceeded to inquire whether a subpoena duces tecum could issue to the
President, taking up first the question whether a general subpoena could issue. At issue here, though not explicitly stated, was a question of separation of powers. Could
the judicial branch by legal order compel the executive to perform some act? Thismatter had come up a few years earlier in the case of Marbury v. Madison, when aparty sought the Supreme Court’s intervention to command the executive to deliver
a commission. As President during the Burr trial, Jefferson was perfectly willingto cooperate in seeing that the defendant obtain the information and testimony
necessary for his defense. He would even testify, though by deposition rather thanpersonal appearance. As a witness, Jefferson insisted that his participation would
be voluntary. To be compelled to answer legal process, he said, would admit the
judiciary’s right to interfere with executive matters–in effect making a coordinate
department supreme over another.

In the provisions of the constitution, and of the statute, which give to the accused right to the compulsory process of the court, there is no exception whatever.
The obligation, therefore, of those provisions is general; and it would seem that no
person could claim an exemption from them, but one who would not be a witness.
At any rate, if an exception to the general principle exist, it must be looked for in
the law of evidence. The exceptions furnished by the law of evidence, (with one only
reservation,) so far as they are personal, are of those only whose testimony could not
be received. The single reservation alluded to is the case of the king. Although he may,perhaps, give testimony, it is said to be incompatible with his dignity to appear under
the process of the court. Of the many points of diﬀerence which exist between theﬁrst magistrate in England and the ﬁrst magistrate of the United States, in respect
to the personal dignity conferred on them by the constitutions of their respective
nations, the court will only select and mention two. It is a principle of the English
constitution that the king can do no wrong, that no blame can be imputed to him,that he cannot be named in debate.
By the constitution of the United States, the president, as well as any other oﬃcer
of the government, may be impeached, and may be removed from oﬃce on highcrimes and misdemeanors.
By the constitution of Great Britain, the crown is hereditary, and the monarch
can never be a subject.
By that of the United States, the president is elected from the mass of the people,
and, on the expiration of the time for which he is elected, returns to the mass of thepeople again.
How essentially this diﬀerence of circumstances must vary the policy of the lawsof the two countries, reference to the personal dignity of the executive chief, will beperceived by every person. In this respect the ﬁrst magistrate of the Union may more
properly be likened to the ﬁrst magistrate of a state; at any rate, under the former

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Confederation; and it is not known ever to have been doubted, but that the chiefmagistrate of a state might be served with a subpoena ad testiﬁcandum.
If, in any court of the United States, it has ever been decided that a subpoena
cannot issue to the president, that decision is unknown to this court.
If, upon any principle, the president could be construed to stand exempt fromthe general provisions of the constitution, it would be, because his duties as chiefmagistrate demand his whole time for national objects. But it is apparent that thisdemand is not unremitting; and, if it should exist at the time when his attendance ona court is required, it would be shown on the return of the subpoena, and would rather
constitute a reason for not obeying the process of the court than a reason against its
being issued. In point of fact it cannot be doubted that the people of England havethe same interest in the service of the executive government, that is, of the cabinet
counsel, that the American people have in the service of the executive of the UnitedStates, and that their duties are as arduous and as unremitting. Yet it has never been
alleged, that a subpoena might not be directed to them. It cannot be denied that toissue a subpoena to a person ﬁlling the exalted position of the chief magistrate is aduty which would be dispensed with more cheerfully than it would be performed;
but, if it be a duty, the court can have no choice in the case.
If, then, as is admitted by the counsel for the United States, a subpoena may issue to the president, the accused is entitled to it of course; and whatever diﬀerence
may exist with respect to the power to compel the same obedience to the process, as
if it had been directed to a private citizen, there exists no diﬀerence with respect tothe right to obtain it. The guard, furnished to this high oﬃcer, to protect him frombeing harassed by vexatious and unnecessary subpoenas, is to be looked for in the
conduct of a court after those subpoenas have issued; not in any circumstance whichis to precede their being issued.
If, in being summoned to give his personal attendance to testify, the law does notdiscriminate between the president and a private citizen, what foundation is there
for the opinion that this diﬀerence is created by the circumstance that his testimony
depends on a paper in his possession, not on facts which have come to his knowledge
otherwise than by writing? The court can perceive no foundation for such an opinion.
The propriety of introducing any paper into a case, as testimony, must depend on thecharacter of the paper, not on the character of the person who holds it. A subpoena
duces tecum, then, may issue to any person to whom an ordinary subpoena may issue,
directing him to bring any paper of which the party praying it has a right to avail
himself as testimony; if, indeed, that be the necessary process for obtaining the viewof such a paper.

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Subpoena duces tecum, June 13, 1807
The court issued this subpoena in consequence of Marshall’s opinion of June 13 insupport of Burr’s motion for this process. In addition to Jefferson, the writ named
Secretary of the Navy Robert Smith and Secretary of War Henry Dearborn. William
Marshall, clerk of the U.S. Circuit Court for the District of Virginia, was the brotherof the Chief Justice.
[Document Source: United States v. Burr, U.S. Circuit Court, Va., Ended Cases(Restored), Library of Virginia.]

The president of the United States of America
To Thomas Jeﬀerson, Robert Smith, Henry Dearborne or either of them who
may have the papers hereinafter mentioned or any of them within his or their keeping or power. You are hereby commanded to appear before the Judges of the circuit
court of the United States, for the ﬁfth circuit, in the Virginia District in the city ofRichmond, at the Court now sitting forthwith to testify in behalf of Aaron Burr ina controversy now depending, between the United States and the said Burr, and tobring with you the letter from General James Wilkinson dated the twenty ﬁrst dayof October 1806 mentioned in the message of the president of the twenty secondof January 1807, to both houses of Congress together with the documents accompanying the same letter and copy of the answer of you the said Thomas Jeﬀerson
or any one by your authority to the said letter and also copies of all the orders andinstructions given by the president of the United States either directly or throughthe departments of war and of the navy to the oﬃcers of the Army and Navy at ornear the New Orleans, stations touching or concerning the said Aaron Burr or his
property. And this you shall in no wise omit:
Witness John Marshall Esquire chief Justice of the United States of America
at Richmond in the Virginia District, this thirteenth day of June 1807 and in thethirty ﬁrst year of the Independence of the United States of America.
Wm Marshall, Clk
The above subpoena is issued by special order of the court on motion of the said
Aaron Burr, and after argument by counsel as well on the part of said Burr as of theUnited States.
William MarshallBurr’s subjoined note to the subpoena:
The transmission to the Clerk of this Court of the original letter of Genl Wilkinson, and of Copies duly authenticated of the other papers and documents described in
the annexed process will be admitted as suﬃcient observance of the process without
the personal attendance of any or either of the persons therein named, but in caseof such transmission it is expected that the copies of the orders and instructions to

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The Aaron Burr Treason Trial

the naval and military oﬃcers be accompanied by the Certiﬁcates of all the persons
named in the process declaring that no other orders or instructions have been given
to the said naval and military oﬃcers respecting the said A. Burr or his property, but
those which are set forth in the said Copies.
A. Burr
Richmond 13th June 1807.

Indictment for treason, U.S. Circuit, Virginia, June 24,
1807
In criminal law, the person accused of a crime must first be indicted by a grandjury before being tried by a petit jury. An indictment is a written accusation framedby the prosecutor upon the grand jury’s “presentment” that a crime has occurred.
In Burr’s case the grand jury was composed of sixteen members, at least twelve ofwhom had to concur that the facts alleged were true. Foreman John Randolph’s endorsement of “a true bill” signified that this minimum number agreed to Burr’s indictment. The indictment below follows a set form and contains much standardized
language. Certain terms of art were required in treason indictments, as for example
wording to the effect that the accused acted “treasonably” (or “traitorously”) andagainst his “allegiance.” Also endorsed on this indictment is the petit jury’s verdict,as entered by foreman Edward Carrington, implying that the jury might have voted
to convict if it had heard additional evidence. Burr protested against this irregularverdict, but Chief Justice Marshall allowed it to stand as the jury wished, while noting that the entry on the official record would be “not guilty.”[Document Source: United States v. Burr, U.S. Circuit Court, Va., Ended Cases(Restored), Library of Virginia.]

Virginia District:In the Circuit Court of the United States of America in and for the ﬁfth Circuit
and Virginia district: The grand inquest of the United States of America, for theVirginia district, upon their oath do present that Aaron Burr, late of the City of New
York, and state of New York, attorney at law, being an inhabitant of and residing
within the United States, and under the protection of the laws of the United States,and owing allegiance and ﬁdelity to the same United States, not having the fear of
god before his eyes, nor weighing the duty of his said allegiance, but being moved andseduced by the instigation of the devil, wickedly devising and intending the peace andtranquillity of the said United States to disturb and to stir move and excite insurrection, rebellion and war against the said United States, on the tenth day of December,in the year of Christ one thousand eight hundred and six at a certain place called and46

The Aaron Burr Treason Trial

known by the name of Blannerhassetts island in the County of Wood and districtof Virginia aforesaid, and within the jurisdiction of this Court, with force and arms,
unlawfully falsely, maliciously and traitorously did compass imagine and intend toraise and levy war, insurrection and rebellion against the said United States, and inorder to fulﬁl and bring to eﬀect the said traitorous compassings imaginations andintentions of him the said Aaron Burr, he the said Aaron Burr, afterwards to wit
on the said tenth day of December in the year one thousand eight hundred and six
aforesaid at the said island called Blennerhassetts island as aforesaid in the Countyof Wood aforesaid in the district of Virginia aforesaid and within the jurisdiction ofthis Court, with a great multitude of persons whose names at present are unknown to
the grand inquest aforesaid, to a great number, to wit to the number of thirty persons
and upwards, armed and arrayed in a warlike manner, that is to say with guns, swords
and dirks, and other warlike weapons as well oﬀensive as defensive, being then andthere unlawfully maliciously and traitorously assembled and gathered together, didfalsely and traitorously assemble and join themselves together against the said UnitedStates, and then and there with force and arms did falsely and traitorously, and ina warlike and hostile manner, array and dispose themselves against the said UnitedStates, and then and there that is to say on the day and in the year aforesaid at theisland aforesaid, commonly called Blannerhassett’s island in the County aforesaid ofWood, within the Virginia district, and the jurisdiction of this Court, in pursuanceof such their traitorous intentions and purposes aforesaid, he the said Aaron Burrwith the said persons so as aforesaid traitorously assembled and armed and arrayedin manner aforesaid most wickedly, maliciously, and traitorously did ordain prepare
and levy war against the said United States, contrary to the duty of their said allegiance and ﬁdelity, against the constitution peace and dignity of the said UnitedStates and against the form of the act of the Congress of the said United States insuch case made and provided
And the grand inquest of the United States of America, for the Virginia district
upon their oaths aforesaid, do further present that the said Aaron Burr, late of theCity of New York, and state of New York, attorney at law, being an inhabitant ofand residing within the United States, and under the protection of the laws of theUnited States, and owing allegiance and ﬁdelity to the same United States, nothaving the fear of god before his eyes, nor weighing the duty of his said allegiancebut being moved and seduced by the instigation of the devil, wickedly devising andintending the peace and tranquillity of the said United States to disturb, and to stir,
move, and excite insurrection rebellion and war against the said United States on
the eleventh day of December in the year of our Lord one thousand eight hundredand six, at a certain place, called and known by the name of Blannerhassetts islandin the County of Wood and district of Virginia aforesaid and within the jurisdictionof this Court, with force and arms, unlawfully, falsely, maliciously and traitorously
did compass, imagine and intend to raise and levy war, insurrection and rebellion

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The Aaron Burr Treason Trial

against the said United States, and in order to fulﬁl and bring to eﬀect the said
traitorous Compassings imaginations and intentions of him the said Aaron Burr, he
the said Aaron Burr, afterwards, to wit, on the said last mentioned [blank space] dayof December in the year one thousand eight hundred and six aforesaid at a certain
place commonly called and known by the name of Blannerhassett’s island in the said
County of Wood, in the district of Virginia aforesaid, and within the jurisdiction ofthis Court, with one other great multitude of persons, whose names at present are
unknown to the grand inquest aforesaid, to a great number, to wit:, to the numberof thirty persons and upwards, armed and arrayed in a warlike manner, that is to say,with guns, swords and dirks and other warlike weapons as well oﬀensive as defensive
being then and there unlawfully, maliciously & traitorously assembled and gathered
together, did falsely and traitorously assemble and join themselves together against
the said United States and then and there with force and arms did falsely and traitorously and in a warlike and hostile manner, array and dispose themselves against thesaid United States, and then and there that is to say, on the day and in the year last
mentioned, at the island aforesaid in the County of Wood aforesaid, in the Virginia
district, and within the jurisdiction of this Court, in pursuance of such their traitorous intentions, and purposes aforesaid, he the said Aaron Burr with the said persons
so as aforesaid traitorously assembled and armed and arrayed in manner aforesaid
most wickedly maliciously and traitorously did ordain prepare and levy war against
the said United States, and further to fulﬁl and carry into eﬀect the said traitorouscompassings, imaginations and intentions of him the said Aaron Burr against thesaid United States, and to carry on the war thus levied as aforesaid against the said
United States, the said Aaron Burr with the multitude last mentioned at the island
aforesaid, in the said County of Wood, within the Virginia district aforesaid andwithin the jurisdiction of this Court, did array themselves in a warlike manner, withguns and other weapons oﬀensive and defensive, and did proceed from the said island down the river Ohio, in the County aforesaid within the Virginia district, andwithin the jurisdiction of this Court, on the said eleventh day of December in theyear one thousand eight hundred and six aforesaid, with the wicked and traitorous
intention to descend the said river and the river Mississippi and by force and arms
traitorously to take possession of a City commonly called New Orleans, in the territory of orleans belonging to the United States: contrary to the duty of their said
allegiance and ﬁdelity, against the Constitution peace and dignity of the said UnitedStates and against the form of the act of the Congress of the United States in suchcase made and provided.
Hay. Attorney of the United States for the Virginia district [Endorsed: “A true bill
/ John Randolph.”] [Endorsed jury verdict: “We of the Jury ﬁnd that Aaron Burr is
not proved to be guilty under this Indictment by any evidence submitted to us. We
therefore ﬁnd him not Guilty. / E. Carrington/ foreman.”]48

The Aaron Burr Treason Trial

Letter from Chief Justice Marshall to Associate Justice William Cushing (excerpts), June 29, 1807
After the grand jury indicted Burr for treason, Marshall knew that a trial was unavoidable. As he often did when faced with novel and perplexing questions on circuit,he consulted with his fellow justices. William Cushing was then the senior justice of
the Supreme Court, having been appointed in 1789. One of the open questions abouttreason law in the United States concerned the doctrine of “constructive treason,”by which the crime might be extended to persons who were connected with a conspiracy but did not participate in the armed assemblage. Note that Marshall did notdeny the doctrine—indeed, the Supreme Court had adopted it in the Bollman case.
If he was uncertain about the doctrine’s applicability in the United States, Marshall
did clearly recognize that English treason law went well beyond the Constitution’s
definition of the crime. In the questions he raised about the proof of overt acts, hehinted at the decision he was to give at the trial.
[Document Source: The Papers of John Marshall, vol. 2: Correspondence,
Papers, and Selected Judicial Opinions April 1807–December 1813, eds., Charles F.
Hobson, et al. (Chapel Hill: University of North Carolina Press, 1993), 60–62.]

It has been my fate to be engaged in the trial of a person whose case presents many
real intrinsic diﬃculties which are inﬁnitely multiplied by extrinsic circumstances.
It would have been my earnest wish to consult with all my brethren of the benchon the various intricate points that occur, on which a contrariety of opinion ought
not to prevail in the diﬀerent circuits, but which cannot easily be carried before thesupreme court. Sincerely do I lament that this wish cannot be completely indulged.
...
Many points of diﬃculty will arise before the petty jury which cannot be foreseen& on which I must decide according to the best lights I possess. But there are somewhich will certainly occur, respecting which considerable doubts may be entertained,& on which I must anxiously desire the aid of all the Judges. One of these respects
the doctrine of constructive treasons. How far is this doctrine to be carried in the
United States? If a body of men assemble for a treasonable purpose, does this implicate all those who are concerned in the conspiracy whether acquainted with theassemblage or not? Does it implicate those who advised directed or approved of it?
Or does it implicate those only who were present or within the district? . . .
The opinion of the supreme court in the case of Bollman & Swartwout certainly
adopts the doctrine of constructive treasons. How far does that case carry this doctrine? Ought the expressions in that opinion to be revised? . . .
The English books contain many cases in which, for the purpose of proving thegeneral objects of a conspiracy, the acts & writings of one conspirator have been givenin evidence against others. But in England, treason may be committed by imagin-

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ing the death of the King, & a conspiracy is an overt act of this treason. The generalobjects of the conspiracy may be proved by the conduct of any of the conspirators,
and these general objects attach in a certain degree to every member. Yet, even in
England, after proving the general objects of the conspiracy, the jury must enquire
how far the individual whose case is before them participated in those objects; & inthis enquiry I am not certain that the conduct or declarations of any person, not assented to by the prisoner, can be brought to bear upon him. I am inclined to believethat this kind of testimony is admissible only in those prosecutions where the crime
is consummated by the intention, & a conspiracy is an overt act. I do not know how
far it can be allowed where the crime must be the embodying of men or any otheropen deed. . . .
I am aware of the unwillingness with which a Judge will commit himself by anopinion on a case not before him & on which he has heard no argument. Could
this case be readily carried into the supreme court I would not ask an opinion inits present stage. But these questions must be decided by the Judges separately on
their respective circuits, & I am sure there would be a strong & general repugnanceto giving contradictory decisions on the same points. Such a circumstance would bedisreputable to the Judges themselves as well as to our judicial system. This consideration suggests the propriety of a consultation on new & diﬃcult subjects & will I
trust apologize for this letter. . . .

Argument of John Wickham (excerpts), U.S. Circuit Court
for the District of Virginia, August 20–21, 1807
The key moment of the Burr treason trial was the defense’s motion on August 20
to exclude further testimony as irrelevant to proving the indictment’s charge that
Burr had levied war on Blennerhassett’s Island on December 10, 1806. Wickham
led off for the defense in support of the motion on August 20, 1807, concluding thenext day. He devoted most of his speech to showing that under the Constitution no
person could “be guilty of treason, by levying war, unless he was personally present
when and where an overt act of war was committed, and participated therein.” In
the first excerpt, he contended that on the subject of treason the Constitution was
not to be interpreted according to English law. The document is a journalist’s account of Wickham’s remarks rather than an exact transcription.
[Document Source: United States v. Burr, 25 Fed. Cases 116–22.]

In support of the ﬁrst proposition, Mr. W. contended that the clauses of theconstitution which declare that “treason against the United States shall consist onlyin levying war against them, or in adhering to their enemies, giving them aid andcomfort,” and that “no person shall be convicted, unless on the testimony of two
witnesses to the same overt act,” must be construed according to the plain, natural

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import of the words. The constitution is a new and original compact between thepeople of the United States, and is to be construed, not by the rules of art belonging
to a particular science or profession, but like a treaty or national compact, in which
words are to be taken according to their natural import, unless such a construction
would lead to a plain absurdity. It being new and original, and having no reference
to any former act or instrument, forbids a resort to any other rules of construction
than such as are furnished by the constitution itself, or the nature of the subject.
Hence, artiﬁcial rules of construction, drawn from the common law and the usagesof courts in construing statutes, cannot be resorted to, to prove that these words ofthe constitution are to be construed, not according to their natural import, but thatan artiﬁcial meaning, drawn from the statute and common law of England, is to beaﬃxed to them, entirely diﬀerent.
Here Wickham argued that treason in the United States was a crime created by theConstitution and statute, which must be construed without any reference to a supposed national common law.

Under the federal constitution, I presume, it will hardly be contended by thecounsel for the prosecution that we have any common law belonging to the UnitedStates at large. I always did believe, and still believe, that we have no common law
for the United States, especially in criminal cases. The only ground on which thecommon law becomes a rule of decision in the federal courts, is under that clausein the judiciary law, which makes the laws of the several states a rule of decision, as
far as they respectively apply. The common law is part of the law of Virginia, andthe act of congress has adopted the laws of Virginia as the rule of decision in cases
where they apply. With respect to crimes and oﬀences against the United States,
which must be punished in a uniform manner throughout the Union, it seems clear,for the reason already given, that none such can exist at common law, as the UnitedStates have in that character no common law, and that they must be created bystatute. Unquestionably the gentlemen will not deny this uniformity; they will notcontend that what is treason in Maryland is not treason in Virginia, or vice versa. If
it exist at all, it must be uniform, embracing the whole of the United States. That theUnited States have no common law, and that oﬀences against them must be createdand prohibited by statute, is the opinion of the learned Judge Chase; and I believethat this opinion received the unqualiﬁed approbation of those who thought mostunfavorably of his opinions and judicial conduct on other occasions. Now, as there isno general common law of the United States, the act of congress must be construed
without any reference to any common law, and treason is to be considered as a newly
created oﬀence, against a newly created government.

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The Constitution, said Wickham, must be interpreted according to the intentionof the framers, whose wise understanding of human nature led them to prescribe astrict definition of treason so that it would not become an instrument of governmentor party tyranny.

This brings me to the consideration of the constitution itself. I have before
endeavored to demonstrate that this instrument is not to be explained by the samenarrow, technical rules that apply to a statute made for altering some provision of thecommon law; but that such a construction should be given as is consistent not onlywith the letter but the spirit in which the great palladium of our liberties was formed.
The object of the American constitution was to perpetuate the liberties of the peopleof this country. The framers of the instrument well knew the dreadful punishments
inﬂicted, and the grievous oppressions produced, by constructive treasons in othercountries, as well where the primary object was the security of the throne as where
the public good was the pretext. Those gentlemen well knew from history, ancient
as well as modern, that, in every age and climate, where the people enjoyed even thesemblance of liberty, and where factions or parties existed, an accusation of treason,or a design to overturn the government, had been occasionally resorted to by thosein power as the most convenient means of destroying those individuals whom they
had marked out for victims; and that the best mode of insuring a man’s conviction
was to hunt him down as dangerous to the state. They knew that mankind are always
the same, and that the same passions and vices must exist, though sometimes underdiﬀerent modiﬁcations, until the human race itself be extinct. That a repetition of
the same scenes which have deluged other countries with their best blood mighttake place here they well knew, and endeavored as far as possible to guard against theevil by a constitutional sanction. They knew that when a state is divided into parties,
what horrible cruelties may be committed even in the name and under the assumed
authority of a majority of the people, and therefore endeavored to prevent them.
The events which have since occurred in another country, and the suﬀerings under
Robespierre, show how well human nature was understood by those who framed ourconstitution. The language which they have used for this purpose is plain, simple,
and perspicuous. There is no occasion to resort to the rules of construction to ﬁx its
meaning. It explains itself. Treason is to consist in levying war against the UnitedStates, and it must be public or open war; two witnesses must prove that there has
been an overt act. The spirit and object of this constitutional provision are equallyclear. The framers of the constitution, with the great volume of human nature before them, knew that perjury could easily be enlisted on the side of oppression; thatany man might become the victim of private accusation; that declarations might beproved which were never made; and therefore they meant, as they have said, thatno man should be the victim of such secret crimination; but that the punishment of
this oﬀence should only be incurred by those whose crimes are plain and apparent,
against whom an open deed is proved.
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Wickham concluded his argument by inquiring, “What properly constitutes thecrime of levying war?”In support of the fourth proposition, Mr. W. went into an examination of thequestion, “What properly constitutes the crime of levying war?” He contended thatforce and military array were essential ingredients; neither of which had been proved
at Blennerhassett’s Island. He did not claim that actual force was absolutely necessary when there was a suﬃcient display of men and means to eﬀect the object byintimidation. If a body of men, suﬃcient in number and means to take the capital,
and all the property in it, should march into the city, and ﬁnd no opposition, theywould accomplish their object by terror of numbers and warlike appearance. Thisis denominated potential force; the object is accomplished without the actual exertion of force, though force suﬃcient to accomplish it is employed. He referred tothe trial of Fries, to show that even Mr. Rawle and Mr. Sitgreaves, the counsel forthe prosecution, admitted that force of this character, at least, was necessary. He
also referred to many English authorities to prove that force and military array arenecessary ingredients, under the statute of 25 Edw. III, of the crime of levying war.
He insisted that in so far as any expressions were to be found in the opinion of thesupreme court in the Case of Bollman and Swartwout, which might seem to imply
that force was not necessary, they were obiter and extra-judicial. He cited otherauthorities which are here omitted, and insisted that the evidence wholly failed toshow that there had been anything like force, or violence, or military array displayedon Blennerhassett’s Island.

Argument of William Wirt (excerpts), U.S. Circuit Court,
August 25, 1807
Wirt was the second of the three prosecution lawyers to speak against the motion to
exclude further evidence. His speech was mainly a point-by-point reply to Wickham.
Here he attacked what he considered to be the weakest part of Wickham’s argument—his studious avoidance of the Supreme Court’s opinion in Ex parte Bollman
and Swartwout. The prosecution relied heavily on this precedent to show that Burr
had committed treason even though he was not present on Blennerhassett’s Island.
The document is a journalist’s account of Wirt’s remarks rather than an exact transcription.
[Document Source: United States v. Burr, 25 Fed. Cases 122–36.]

Sir, if the gentleman had believed this decision to be favorable to him, we shouldhave heard of it in the beginning of his argument, for the path of inquiry in which
he was led him directly to it. Interpreting the American constitution, he would have

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preferred no authority to that of the supreme court of the country. Yes, sir, he would
have immediately seized this decision with avidity. He would have set it before youin every possible light. He would have illustrated it. He would have adorned it.
You would have seen it, under the action of his genius, appear with all the varying
grandeur of our mountains in the morning sun. He would not have relinquished it
for the common law, nor have deserted a rock so broad and solid to walk upon the
waves of the Atlantic. But he knew that this decision closed against him completely
the very point for which he was laboring. Hence it was that the decision was kept
so sedulously out of view, until, from the exploded materials of the common law, hethought he had reared a Gothic ediﬁce so huge and so dark as quite to overshadow
and eclipse it. Let us bring it from this obscurity into the face of day. We who areseeking truth and not victory, whether right or wrong, have no reason to turn oureyes from any source of light which presents itself, and least of all from a source sohigh and so respectable as the decision of the supreme court of the United States.
The inquiry is whether the presence at the overt act be necessary to make a man a
traitor. The gentlemen say that it is necessary—that he cannot be a principal in thetreason without actual presence. What says the supreme court in the Case of Bollman and Swartwout? “It is not the intention of the court to say that no individual
can be guilty of this crime who has not appeared in arms against his country. On
the contrary, if war be actually levied, that is, if a body of men be assembled for the
purpose of eﬀecting by force a treasonable purpose, all those who perform any part,however minute, or however remote from the scene of action, and who are actuallyleagued in the general conspiracy, are to be considered as traitors.” He insisted that
this decision of the supreme court had settled the principle that actual presence was
not necessary, and that the passage upon which he relied was not a mere obiter dictum, and not extra judicial; that in the Case of Bollman and Swartwout the question
whether actual presence at the place where the overt act was committed was necessary to constitute the crime of treason was a material question to be considered by
the court.
To demonstrate the absurdity of regarding only those physically present on
Blennerhassett’s Island as the principals, Wirt drew a contrast between Burr, theplanner and contriver of treason, and Harman Blennerhassett, a willing but naive
innocent who enlisted in Burr’s cause. Wirt’s literary and rhetorical gifts are amply
demonstrated in this excerpt, which became a classic of American oratory.

Who is Blennerhassett? A native of Ireland, a man of letters, who ﬂed from thestorms of his own country to ﬁnd quiet in ours. His history shows that war is not thenatural element of his mind. If it had been, he never would have exchanged Ireland
for America. So far is an army from furnishing the society natural and proper to Mr.

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Blennerhassett’s character, that on his arrival in America, he retired even from the
population of the Atlantic states, and sought quiet and solitude in the bosom of ourwestern forests. But he carried with him taste and science and wealth; and lo! thedesert smiled. Possessing himself of a beautiful island in the Ohio, he rears upon it apalace, and decorates it with every romantic embellishment of fancy. A shrubbery, thatShenstone might have envied, blooms around him. Music that might have charmed
Calypso and her nymphs, is his. An extensive library spreads its treasures before him.
A philosophical apparatus oﬀers to him all the secrets and mysteries of nature. Peace,
tranquility, and innocence shed their mingled delights around him. And to crown theenchantment of the scene, a wife who is said to be lovely even beyond her sex andgraced with every accomplishment that can render it irresistible, had blessed him with
her love, and made him the father of several children. The evidence would convince
you that this is but a faint picture of the real life. In the midst of all this peace, thisinnocent simplicity and this tranquility, this feast of the mind, this pure banquet ofthe heart, the destroyer comes; he comes to change this paradise into a hell. Yet theﬂowers do not wither at his approach. No monitory shuddering through the bosomof their unfortunate possessor warns him of the ruin that is coming upon him. A
stranger presents himself. Introduced to their civilities by the high rank which he hadlately held in his country, he soon ﬁnds his way to their hearts, by the dignity andelegance of his demeanor, the light and beauty of his conversation, and the seductive
and fascinating power of his address. The conquest was not diﬃcult. Innocence isever simple and credulous. Conscious of no design itself, it suspects none in others.
It wears no guard before its breast. Every door and portal and avenue of the heartis thrown open, and all who choose it enter. Such was the state of Eden when theserpent entered its bowers. The prisoner, in a more engaging form, winding himself
into the open and unpracticed heart of the unfortunate Blennerhassett, found but
little diﬃculty in changing the native character of that heart and the objects of its
aﬀection. By degrees he infuses into it the poison of his own ambition. He breathes
into it the ﬁre of his own courage; a daring and desperate thirst for glory; an ardor
panting for great enterprises, for all the storm and bustle and hurricane of life. Ina short time the whole man is changed; and every object of his former delight isrelinquished. No more he enjoys the tranquil scene; it has become ﬂat and insipid
to his taste. His books are abandoned. His retort and crucible are thrown aside. His
shrubbery blooms and breathes its fragrance upon the air in vain; he likes it not. His
ear no longer drinks the rich melody of music; it longs for the trumpet’s clangor andthe cannon’s roar. Even the prattle of his babes, once so sweet, no longer aﬀects him;
and the angel smile of his wife, which hitherto touched his bosom with ecstasy sounspeakable, is now unseen and unfelt. Greater objects have taken possession of hissoul. His imagination has been dazzled by visions of diadems, of stars and garters andtitles of nobility. He has been taught to burn with restless emulation at the names ofgreat heroes and conquerors. His enchanted island is destined soon to relapse into a

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wilderness; and in a few months we ﬁnd the beautiful and tender partner of his bosom,
whom he lately “permitted not the winds of ” summer “to visit too roughly,” we ﬁnd
her shivering at midnight, on the winter banks of the Ohio, and mingling her tears
with the torrents, that froze as they fell. Yet this unfortunate man, thus deluded fromhis interest and his happiness, thus seduced from the paths of innocence and peace,thus confounded in the toils that were deliberately spread for him and overwhelmedby the mastering spirit and genius of another—this man, thus ruined and undone
and made to play a subordinate part in this grand drama of guilt and treason, thisman is to be called the principal oﬀender, while he by whom he was thus plunged
in misery is comparatively innocent, a mere accessory! Is this reason? Is it law? Is it
humanity? Sir, neither the human heart nor the human understanding will bear aperversion so monstrous and absurd! so shocking to the soul! so revolting to reason!
Let Aaron Burr, then, not shrink from the high destination which he has courted,and having already ruined Blennerhassett in fortune, character and happiness forever,let him not attempt to ﬁnish the tragedy by thrusting that ill-fated man between
himself and punishment.

Marshall’s opinion (excerpts), U.S. Circuit Court, Virginia, August 31, 1807
After ten days of argument on the motion to exclude further testimony, Chief JusticeMarshall delivered the principal opinion in the Burr treason trial. Broadly speaking, the opinion addressed the question, What is the meaning of treason under theConstitution? He devoted a major portion of the opinion to explaining and clarifying the Supreme Court’s opinion in Ex parte Bollman and Swartwout.
In this first excerpt, the Chief Justice rejected the defense’s argument that theopinion was “extrajudicial,” that is, not directly related to the court’s decision andthus not having the authority of precedent. He also denied the prosecution’s contention that the opinion adopted the English common law doctrine that an accessory—
one who advised, aided, or abetted the crime—could be implicated as a principal intreason.
[Document Source: United States v. Burr, 25 Fed. Cases 159–80.]

It may now be proper to notice the opinion of the supreme court in the case of
the United States against Bollman and Swartwout. It is said that this opinion, in
declaring that those who do not bear arms may yet be guilty of treason, is contrary
to law, and is not obligatory because it is extra-judicial and was delivered on a point
not argued. This court is therefore required to depart from the principle there laid
down. It is true that, in that case, after forming the opinion that no treason could
be committed because no treasonable assemblage had taken place, the court might

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have dispensed with proceeding further in the doctrines of treason. But it is to beremembered that the judges might act separately, and perhaps at the same time on
the various prosecutions which might be instituted, and that no appeal lay fromtheir decisions. Opposite judgments on the point would have presented a state ofthings inﬁnitely to be deplored by all. It was not surprising, then, that they shouldhave made some attempt to settle principles which would probably occur, and whichwere in some degree connected with the point before them. The court had employedsome reasoning to show that without the actual embodying of men war could not be
levied. It might have been inferred from this that those only who were so embodied
could be guilty of treason. Not only to exclude this inference, but also to aﬃrm thecontrary, the court proceeded to observe: “It is not the intention of the court to saythat no individual can be guilty of this crime who has not appeared in arms against his
country. On the contrary, if war be actually levied, that is, if a body of men be actuallyassembled for the purpose of eﬀecting by force a treasonable object, all those who
perform any part, however minute, or however remote from the scene of action, and
who are actually leagued in the general conspiracy, are to be considered as traitors.”
This court is told that if this opinion be incorrect it ought not to be obeyed, because
it was extra-judicial. For myself, I can say that I could not lightly be prevailed on todisobey it, were I even convinced that it was erroneous; but I would certainly use
any means which the law placed in my power to carry the question again before thesupreme court for reconsideration, in a case in which it would directly occur and be
fully argued. The court which gave this opinion was composed of four judges. At thetime I thought them unanimous, but I have since had reason to suspect that one ofthem, whose opinion is entitled to great respect, and whose indisposition prevented
his entering into the discussions, on some of those points which were not essential
to the decision of the very case under consideration, did not concur in this particularpoint with his brethren. Had the opinion been unanimous, it would have been given
by a majority of the judges. But should the three who were absent concur with thatjudge who was present, and who perhaps dissents from what was then the opinion of
the court, a majority of the judges may overrule this decision. I should, therefore, feelno objection, although I then thought and still think the opinion perfectly correct, tocarry the point, if possible, again before the supreme court, if the case should depend
upon it. In saying that I still think the opinion perfectly correct, I do not consider
myself as going further than the preceding reasoning goes. Some gentlemen haveargued as if the supreme court had adopted the whole doctrine of the English bookson the subject of accessories to treason. But certainly such is not the fact. Those only
who perform a part, and who are leagued in the conspiracy, are declared to be traitors.
To complete the deﬁnition both circumstances must concur. They must “perform apart,” which will furnish the overt act; and they must be “leagued in conspiracy.” Theperson who comes within this description in the opinion of the court levies war. The
present motion, however, does not rest upon this point; for if under this indictment

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the United States might be let in to prove the part performed by the prisoner, if he
did perform any part, the court could not stop the testimony, in its present stage.
In this excerpt, Marshall attempted to clarify another troublesome point arisingfrom the Bollman and Swartwout opinion concerning the meaning of “levying war.”
He denied the prosecution’s contention that the Supreme Court countenanced thedoctrine that neither arms nor force was an indispensable ingredient in levyingwar.

But it is said all these authorities have been overruled by the decision of thesupreme court in the case of U.S. v. Swartwout. If the supreme court have indeed
extended the doctrine of treason further than it has heretofore been carried by thejudges of England or of this country, their decision would be submitted to. At least
this court could go no further than to endeavor again to bring the point directly
before them. It would, however, be expected that an opinion which is to overrule
all former precedents, and to establish a principle never before recognized, should
be expressed in plain and explicit terms. A mere implication ought not to prostratea principle which seems to have been so well established. Had the intention beenentertained to make so material a change in this respect, the court ought to haveexpressly declared that any assemblage of men whatever, who had formed a treasonable design, whether in force or not, whether in a condition to attempt the design ornot, whether attended with warlike appearances or not, constitutes the fact of levying
war. Yet no declaration to this amount is made. Not an expression of the kind is tobe found in the opinion of the supreme court.
In the following excerpts, Marshall explained why the evidence that the prosecution
planned to present could not meet the criteria for establishing treason under thedefinitions set out in the U.S. Constitution. All had agreed that Burr was neither
present nor actively involved in the assemblage on Blennerhassett’s Island. To convict him for playing a role as advisor or preliminary organizer would only be possible under the definitions of treason in English law rather than the Constitution.

It may not be improper in this place again to advert to the opinion of the supreme
court, and to show that it contains nothing contrary to the doctrine now laid down.
That opinion is, that an individual may be guilty of treason “who has not appearedin arms against his country; that if war be actually levied, that is, if a body of men
be actually assembled for the purpose of eﬀecting by force a treasonable object, allthose who perform any part, however minute, or however remote from the scene ofaction, and who are actually leagued in the general conspiracy, are to be consideredas traitors.”

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This opinion does not touch the case of a person who advises or procures anassemblage, and does nothing further. The advising, certainly, and perhaps the procuring, is more in the nature of a conspiracy to levy war than of the actual levyingof war. According to the opinion, it is not enough to be leagued in the conspiracy,
and that war be levied, but it is also necessary to perform a part: that part is the actof levying war. That part, it is true, may be minute, it may not be the actual appearance in arms, and it may be remote from the scene of action, that is, from the place
where the army is assembled; but it must be a part, and that part must be performed
by a person who is leagued in the conspiracy. This part, however minute or remote,constitutes the overt act of which alone the person who performs it can be convicted.
...
It is, then, the opinion of the court that this indictment can be supported only
by testimony which proves the accused to have been actually or constructively present when the assemblage took place on Blennerhassett’s Island; or by the admissionof the doctrine that he who procures an act may be indicted as having performedthat act. It is further the opinion of the court that there is no testimony whatever
which tends to prove that the accused was actually or constructively present whenthat assemblage did take place; indeed, the contrary is most apparent. With respect
to admitting proof of procurement to establish a charge of actual presence, the court
is of opinion that if this be admissible in England on an indictment for levying war,
which is far from being conceded, it is admissible only by virtue of the operation of
the common law upon the statute, and therefore is not admissible in this country
unless by virtue of a similar operation; a point far from being established, but on
which, for the present, no opinion is given.

In concluding his opinion, Marshall anticipated the criticism that would inevitably
follow from his decision to prevent the jury from hearing further evidence in thecase. He cast himself as the embattled judge obeying the stern dictates of judicial
duty in resisting the popular tide.

Much has been said in the course of the argument on points on which the court
feels no inclination to comment particularly; but which may, perhaps not improperly,
receive some notice. That this court dares not usurp power is most true. That thiscourt dares not shrink from its duty is not less true. No man is desirous of placing
himself in a disagreeable situation. No man is desirous of becoming the peculiar
subject of calumny. No man might he let the bitter cup pass from him without selfreproach, would drain it to the bottom. But if he have no choice in the case, if there
be no alternative presented to him but a dereliction of duty or the opprobrium of
those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace. That gentlemen, in a case

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the most interesting, in the zeal with which they advocate particular opinions, andunder the conviction in some measure produced by that zeal, should, on each side,
press their arguments too far, should be impatient at any deliberation in the court,
and should suspect or fear the operation of motives to which alone they can ascribethat deliberation, is, perhaps, a frailty incident to human nature; but if any conduct
on the part of the court could warrant a sentiment that it would deviate to the one
side or the other from the line prescribed by duty and by law, that conduct would beviewed by the judges themselves with an eye of extreme severity, and would long be
recollected with deep and serious regret.

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Select Bibliography of Works Consulted
in the Compilation of the Burr Trial Site
Secondary sources
Lomask, Milton. Aaron Burr: The Conspiracy and Years of Exile, 1805–1836. New
York: Farrar, Straus, and Giroux, 1982.
Malone, Dumas. Jefferson the President: Second Term, 1805–1809. Boston: Little,
Brown and Company, 1974.
Melton, Buckner F., Jr. Aaron Burr: Conspiracy to Treason. New York: John Wiley &Sons, Inc., 2002.
Wheelan, Joseph. Jefferson’s Vendetta: The Pursuit of Aaron Burr and the Judiciary.
New York: Carroll & Graff, 2005.

Court records
United States v. Burr, U.S. Circuit Court, Va., Ended Cases (Restored), Library of
Virginia.

Published primary sources“Burr’s Conspiracy,” 9th Cong., 2d sess., 1807. American State Papers, 10, Miscellaneous, 1:468-650. Washington: Gales and Seaton, 1834.
Combs, J. J. The Trial of Aaron Burr for High Treason. 1864. Reprint. New York:
Notable Trials Library, 1992.
The Papers of John Marshall, Volume VII: Correspondence, Papers, and Selected
Judicial Opinions April 1807–December 1813. Eds. Charles F. Hobson, et al. Chapel
Hill, N.C., University of North Carolina Press, 1993.
Political Correspondence and Public Papers of Aaron Burr. Eds. Mary-Jo Kline andJoanne Wood Ryan. 2 vols. Princeton, N.J., Princeton University Press, 1983.

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Safford, William H. The Blennerhassett Papers . . . Cincinnati: Moore, Wilstach &Baldwin, 1864.
Robertson, David. Reports of the Trials of Colonel Aaron Burr in the circuit court of theUnited States, summer term 1807. 2 vols. 1808. Reprint. New York, 1969.
Carpenter, T[homas]. The Trial of Col. Aaron Burr . . . 3 vols. Washington: Westcott& Co., 1807–1808.
United States v. Burr, 25 Fed. Cases, 2–207.

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