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 Offi ce

2006

This 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 the 

author 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

iii

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 defi nition 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 to 

request the court to compel the attendance of his witnesses? 14

Can a person who organized or instigated the gathering of an 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? 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Historical Documents Related to the Burr Case 40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
The Aaron Burr Treason Trial

iv

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
The Aaron Burr Treason Trial

1

The Aaron Burr Treason Trial: A Short 

Narrative

The trial of Aaron Burr for treason in 1807 has few rivals in American history for 

dramatic appeal and for its colorful cast of characters. The accused traitor had been 

Vice President during the fi rst administration of Thomas Jefferson. In the summer 

of 1804, Burr killed his rival Alexander Hamilton in a duel, an event that effectively 

ended Burr’s career in national politics. Three years later, he was on trial, charged 

with the capital crime of treason by the government headed by Jefferson, his former 

partner in political offi ce. Presiding over the trial was John Marshall, Chief Justice 

of the United States, the President’s distant cousin and political foe. Finally, there 

was James Wilkinson, general of the army, once Burr’s associate and at trial his chief 

accuser. With these principal players, the trial in the U.S. Circuit Court at Richmond 

was as much high political and personal drama as it was a judicial proceeding. 

The law of treason

From the standpoint of constitutional law, the Burr trial is notable for Chief Justice 

Marshall’s landmark decision narrowly construing the Constitution’s defi nition of 

treason and thereby making conviction for this crime exceedingly diffi cult. 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 fi rst 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 defi nition than had prevailed in Great 

Britain. Some of the language used in the Constitution was identical to an English 

statute of 1352 that listed seven treasonable actions, including levying war against 

the king and adhering to his enemies and giving them aid and comfort. Of the other 

treasonable actions in the English law, the most important was “compassing” (bringing about) or imagining the death of the king. English judges had extended this 

category of treason by “construction” (interpretation) to embrace spoken or written 

words critical of government policy and actions taken to prevent the execution of a 

law. The framers’ omission of this defi nition of treason was intended to restrict the 

concept of “constructive treason”—in other words, speaking or acting to encourage 

treason—that in England had been exploited to suppress dissent and political opposition. 
The Aaron Burr Treason Trial

2

 At some level, however, a federal law of treason could not entirely dispense with 

the concept of constructive treason. The Constitution might defi ne treason as “levying 

war,” but the precise meaning of that term could only emerge by judicial construction 

in a series of cases. Before the Burr trial, the few United States cases of treason were 

limited to the federal government’s prosecution of persons involved in resisting a 

tax on distilled spirits and a direct tax in the 1790s. These cases were not important 

precedents for the Burr trial, though they provided examples of what some federal 

judges regarded as the conditions and circumstances necessary to constitute levying 

war. To discover the meaning of levying war, the Burr trial lawyers combed through 

many volumes of reports of English state trials. These cases shed much light, but 

American lawyers had to choose carefully which parts of English law they wanted 

judges to say were applicable to the United States. 

The Burr conspiracy

The government prosecutors alleged that Burr levied war against the United States 

as part of a conspiracy to establish a separate confederacy composed of the Western 

states and territories. Separation of the West from the union was a real possibility 

in the early nineteenth century, when many doubted whether a republican form of 

government centered on the Atlantic coast could effectively extend its jurisdiction 

to the vast region between the Alleghenies and the Mississippi River. 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 of 

talents and enterprise might fi nd opportunity.

 Aaron Burr clearly believed the West offered him a second chance after his fall 

from grace. Nearing 50 after his fatal encounter with Hamilton, Burr was full of restless ambition, determined to play the grand role he believed was his destiny. In 1805, 

he fl oated down the Ohio and Mississippi to New Orleans, greeted enthusiastically 

at various stopping points. This triumphal tour buoyed his hopes, and he set about 

making plans, seeking funds, obtaining supplies, and recruiting followers for a second 

expedition to take place in the fall of 1806. Burr found recruits among young men 

living in the interior section of the country, susceptible to his persuasive charm and 

motivated by dreams of winning glory and fortune. He found willing fi nancial backers as well, including one Harman Blennerhassett, an immigrant Irish lawyer who 

built an idyllic estate on an island in the middle of the Ohio River. Blennerhassett 

not only provided funds, but his island was nicely situated to serve as an assembly 

point for men, boats, and supplies.What were Burr’s intentions? Clearly, he planned 

some kind of expedition that was military in character. Did he envision a war with 

Spain, in which he would lead an attack upon Spanish possessions in North America, 

invade Mexico, and liberate South America? If this was his aim, he was not a traitor, 
The Aaron Burr Treason Trial

3

though he might be in violation of the Neutrality Act of 1794, which made it a “high 

misdemeanor” to engage in military operations against a foreign power with whom 

the United States was at peace. If such an operation succeeded, however, Burr most 

likely would not be prosecuted but hailed as a patriot whose military exploits fulfi lled 

the expansionist aspirations of his countrymen. Or, did Burr’s proposed expedition 

against Spain mask a traitorous design to foment revolution in the West and establish 

a separate grand empire extending from the Mississippi Valley to Mexico City and 

beyond?

 Burr’s enterprise collapsed before it had hardly begun, thanks to information provided by General Wilkinson, who was also governor of the Louisiana Territory. Burr 

had drawn Wilkinson so far into his plans that the two communicated in “cipher,” a 

code in which numerals are substituted for letters. In October 1806, Wilkinson got 

cold feet and decided to turn informer. He sent President Jefferson a translated copy 

of a cipher letter said to be from Burr. This letter, dated July 1806, spoke of plans to 

move down the Ohio in mid-November and proceed to New Orleans. Wilkinson 

subsequently furnished additional information that Burr was raising an army of 

7,000 men, that a certain unspecifi ed territory was to be “revolutionized,” and that 

seizures were to be made at New Orleans.

Ex parte Bollman and Swartwout

Jefferson responded by issuing a proclamation of conspiracy. In short order, Burr’s 

“army” melted away to a few hundred recruits. Wilkinson himself took action in New 

Orleans, declaring martial law and rounding up suspects and potential witnesses. 

Among these were Burr’s associates, Erick Bollman and Samuel Swartwout, who had 

carried messages, including the cipher letter, from Burr. Wilkinson sent them under 

military guard to Washington, where they were held in custody. In February 1807, 

the Supreme Court granted their motion for a writ of habeas corpus, by which the 

prisoners were brought into court for an inquiry into the legality of their imprisonment.

 Marshall’s opinion in Ex parte Bollman and Swartwout ordered the prisoners’ 

release on the grounds that there was no probable cause to commit them on charges 

of treason. The opinion offered general observations about the nature of treason 

that were to have an important bearing in the trial of Aaron Burr. To be traitor, said 

Marshall, an individual did not have to appear “in arms against his country. On the 

contrary, if war be actually levied, that is, if a body of men be actually assembled 

for the purpose of effecting by force, a treasonable purpose, all those who perform 

any part, however minute or however remote from the scene of action, and who are 

actually leagued in the general conspiracy, are to be considered as traitors.” By the 

time this opinion was published in the newspapers, the Jefferson administration had 

already decided to prosecute Burr for treason. The government was fully aware of the 
The Aaron Burr Treason Trial

4

diffi culty of securing a conviction for treason. Indeed, its quick and effective action 

in suppressing the conspiracy before it ripened into open warfare compounded the 

problem of proving overt acts as required by the Constitution. The Bollman opinion, 

however, might have encouraged the President and his legal advisers that they could 

make a case against Burr. They chose as the overt act required for conviction the events 

that took place on Blennerhassett’s Island in the Ohio River on the night of December 

10, 1806. A body of men had assembled there and was preparing to embark down 

river, apparently to join up with other detachments and proceed to New Orleans. 

There was a brief confrontation of sorts when a Virginia militia unit attempted to 

dissuade Blennerhassett and the others from leaving the island. The militia backed 

off in the face of drawn muskets, and Blennerhassett’s party proceeded on its way. 

Burr himself was not on the island at the time, having gone ahead weeks earlier, but 

the Chief Justice himself had said that a person could be a traitor, although “remote 

from the scene of action.”

U.S. Circuit Court, Virginia: Preliminary examination

While the Supreme Court was considering the case of Bollman and Swartwout, an 

army lieutenant holding a copy of the President’s proclamation arrested Burr in the 

Mississippi Territory. By late March 1807, the prisoner was in Richmond for a hearing 

before Chief Justice Marshall, who conducted a preliminary examination in the U.S. 

Circuit Court for Virginia. Because Blennerhassett’s Island lay inside Wood County, 

Virginia (now West Virginia), Burr’s case fell within the jurisdiction of that court, on 

which Marshall and U.S. District Judge Cyrus Griffi n sat. The court was not then in 

regular session, but a judge could conduct a criminal hearing at any time.

 At Burr’s preliminary hearing on March 31, 1807, U.S. Attorney George Hay and 

U.S. Attorney General Caesar Rodney asked Judge Marshall to commit Burr to jail 

on charges of treason and the misdemeanor of waging war against Spain, though 

the government’s real interest was in convicting Burr of treason. John Wickham and 

Edmund Randolph represented Burr, who also argued on his own behalf.

 On April 1, Chief Justice Marshall read the fi rst of many opinions he was to give 

in this case. As in the Bollman case, he concluded that the evidence was not suffi cient 

to show that Burr’s alleged treasonable designs had “ripened into the crime itself by 

levying war against the United States.” He did, however, order Burr to be committed 

for the misdemeanor of carrying on a military expedition against Spanish territory. 

He set bail at $10,000, and the prisoner entered into a bond in that amount for his 

appearance at the next session of the circuit court in May. Like any other accused 

person, Burr did not have to put money up front. Rather, he and some friends acting 

as “securities” bound themselves to pay in case he did not show up in court. 
The Aaron Burr Treason Trial

5

U.S. Circuit Court, Virginia: Grand jury

Burr’s case by now had become deeply embroiled in politics, with Republicans supporting President Jefferson’s measures to bring the accused traitor to justice and 

Federalists rallying to defend Burr against the charges. Many in heavily Republican 

Virginia were inclined to believe Burr had acted traitorously, and this popular belief 

made jury selection more diffi cult and time consuming. After the opening of the 

spring term of the U.S. circuit court on May 22, 1807, a grand jury of sixteen was 

sworn in, and Chief Justice Marshall delivered a charge that was not published but 

reportedly focused on “the defi nition and nature of treason, and the testimony requisite to prove it.”

 Burr’s counsel seized the offense by attacking the prosecution and its motives. 

Luther Martin, who joined Burr’s defense in time for the grand jury proceedings, 

assumed the role of principal attack dog. In one notably vitriolic rant, he denounced 

a President who had “let slip the dogs of war, the hell-hounds of persecution, to 

hunt down my friend.” Earlier, Jefferson had unwittingly and unwisely made himself 

vulnerable to such censure by publicly declaring that Burr’s guilt was “beyond question.” Martin’s outburst came in the midst of the most important argument at this 

stage of the proceedings, prompted by Burr’s motion for a subpoena duces tecum to 

President Jefferson.

 A subpoena duces tecum orders a person to appear in court and “bring with you” 

certain specifi ed documents. Burr wanted the President to turn over a letter and 

papers received from Wilkinson, together with copies of the President’s reply and 

certain directives issued by the departments of war and navy. The motion raised the 

fundamental question of whether the federal judiciary could issue such a subpoena to 

the President without violating the constitutional principle of separation of powers. 

The subpoena followed an earlier contest between the Jefferson administration and 

the Supreme Court concerning the delivery of a commission to a justice of the peace. 

In that earlier case, Marbury v. Madison (1803), the Supreme Court declined for lack 

of jurisdiction to order the delivery of the commission but rebuked the executive 

branch for not doing its legal duty.

 In Burr’s case, too, the threatened confrontation did not occur. Chief Justice 

Marshall granted the motion for a subpoena, maintaining that the President was not 

exempt from court orders designed to protect the constitutional rights of criminal 

defendants. By the terms of the subpoena, the President was to provide the documents but did not have to appear personally. Jefferson did not acknowledge the court’s 

order but informed U.S. Attorney Hay that he had substantially complied with the 

subpoena’s terms by previously delivering the requested documents to the prosecutor. In so doing, Jefferson claimed to act voluntarily and did not acknowledge the 

judiciary’s right to compel him to release executive papers. He also maintained that 

in the interests of national security the President must be the sole judge of which 
The Aaron Burr Treason Trial

6

papers could be safely disclosed. Jefferson here asserted the doctrine known as “executive privilege,” a claim invoked by President Richard Nixon in 1974 in response to a 

subpoena duces tecum ordering him to produce tapes of White House conversations 

relating to the “Watergate” case. Whether or not the papers sought by Burr were 

material to his defense, the motion for a subpoena did provide an opportunity for 

his lawyers to score points against the administration. Another integral part of their 

legal strategy was to discredit Wilkinson, the prosecution’s star witness, whom they 

accused of criminal misconduct in ordering arrests, forcibly seizing and imprisoning potential witnesses, and then having them transported under military guard to 

Richmond. Wilkinson, indeed, proved to be a disappointment to the prosecution, 

his credibility tarnished by suspicion that in revealing Burr’s plot he was merely trying to save his own neck. His testimony before the grand jury was undermined by 

indications that he had altered the famous cipher letter in ways to conceal his own 

relationship with Burr. Despite its questions about Wilkinson, the grand jury on June 

24 returned indictments against Burr and Blennerhassett for treason and the misdemeanor charge of carrying on war against Spain. Chief Justice Marshall scheduled a 

trial for Burr at a special session of the court beginning August 3. 

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

After several postponements because of absent witnesses and a week of selecting 

twelve jury members, the court on August 17, 1807, directed the jury to be sworn 

in, the indictment read, and the case opened by the government. Assisting Hay in 

the prosecution were Alexander MacRae, then lieutenant governor of Virginia, and 

William Wirt, a future U.S. attorney general. Burr’s legal team now numbered fi ve, 

with Benjamin Botts and Charles Lee joining the previously retained Wickham, 

Randolph, and Martin.

 The government’s case hinged on proving that Burr’s military enterprise had a 

treasonable design; that the gathering of men on Blennerhassett’s Island was a partial 

execution of that design and constituted an overt act of levying war; and that Burr, 

though not then on the island, could be considered in law as “constructively” present. 

To make this case, the prosecution intended to offer the testimony of 140 witnesses. 

The defense, believing that a Virginia jury would be unsympathetic with the accused, 

settled on a strategy of taking the case from the jury and placing the question of Burr’s 

guilt in what it hoped would be the safer hands of the court. After only a few witnesses 

had testifi ed, Burr’s counsel moved to exclude the further admission of evidence as 

“collateral,” not directly pertinent to the indictment’s specifi c charge. At best, they 

argued, such testimony could show Burr’s treasonable intentions, his connection with 

the gathering of men on the island, or his participation in actions elsewhere and at 

other times, but it could not prove that Burr levied war on Blennerhassett’s Island.
The Aaron Burr Treason Trial

7

 In an exhaustive hearing on this motion, the lawyers rummaged through the 

whole course of English and American precedents on the law of treason. All the 

argumentation boiled down to the meaning of “levying war” in the treason clause 

of the Constitution. The prosecution pressed for a broad defi nition by which the 

gathering of armed men on the island constituted an overt act of levying war. Citing 

Marshall’s statements in Ex parte Bollman and Swartwout, Hay and his team argued 

that Burr was, in the language of English common law, legally present on the island 

as the “procurer,” that is, the instigator and organizer of the armed force plotting to 

overthrow United States authority in New Orleans. Wickham and the other defense 

lawyers insisted upon a strict defi nition of treason that required an overt act of force 

and the direct involvement of the accused in that act of force.

 On August 31, Chief Justice Marshall delivered the major opinion of the Burr 

trial, upholding the defense’s motion to exclude the further admission of testimony. 

The opinion was dense and complicated, full of qualifi cations and intricate legal distinctions. Speaking only as a circuit court judge, Marshall appeared to shy away from 

making defi nitive pronouncements on such a diffi cult 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 defi nition 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 qualifi ed it. That opinion, he said, despite its apparent relevance 

to Burr’s case, did not extend to one who counseled or advised treason but performed 

no act in carrying on the war. He also denied that the earlier opinion dispensed with 

the idea of force as an essential element in levying war. Ultimately, Marshall ruled 

that the indictment was fl awed in alleging that Burr levied war on Blennerhassett’s 

Island. Instead, it should have stated the truth that the accused was absent and that 

his treason consisted in procuring the assemblage. Such procurement was the overt 

act that would have to be proved by two witnesses. None of the testimony could 

establish this overt act. With no further testimony to consider, the jury had virtually 

no choice but to acquit. In an unusual twist, however, the verdict, instead of a simple 

“not guilty,” declared Burr “not guilty by the evidence presented.” 

 The decision of August 31 effectively ended the trial of Aaron Burr and spared 

him the penalty of death by hanging. His ordeal in court lasted another month and 

a half, however. After failing to convict Burr of treason, the government halfheartedly tried him on the misdemeanor charge of waging war on Spain. This trial, too, 

ended in acquittal, on grounds similar to the earlier acquittal. The federal attorney 

Hay then had one more legal weapon at his disposal: a motion to “commit,” or send, 

Burr for trial in the federal court of Kentucky or Ohio on treason and misdemeanor 

charges.
The Aaron Burr Treason Trial

8

 In this commitment hearing, the court was again acting as an examining tribunal, 

as it had been the preceding spring when Burr was fi rst 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 Griffi n (silent throughout the 

Burr case) listened patiently to the mass of testimony and long-winded arguments 

of the lawyers. Finally, on October 20, Marshall ruled on the motion. Once again, he 

refused to commit Burr for treason but ordered him to stand trial in Ohio on the 

misdemeanor of waging war against Spain. Although Burr was subsequently indicted 

on the misdemeanor charge in the U.S. Circuit Court for the District of Ohio, the 

government chose not to prosecute him. For all practical purposes, he was a free 

man.
The Aaron Burr Treason Trial

9

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 in 

the district of Virginia. That county’s boundaries included Blennerhassett’s Island 

in 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 defi ned by federal law. They were distinct from the U.S. district courts, 

which were principally original courts for trying admiralty and maritime causes and 

suits for penalties and forfeitures incurred under federal laws. The circuit courts also 

had limited appellate jurisdiction over the district courts. Except for a brief interval 

in 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 the 

fi fth 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 Griffi n, who made no 

recorded comments during the Burr trial.
The Aaron Burr Treason Trial

10

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 of 

Delegates 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 the 

misdemeanor 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 bond 

for $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.
The Aaron Burr Treason Trial

11

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 for 

treason to begin on August 3.

June 30, 1807

U.S. Circuit Court for the District of Virginia

Marshall ordered Burr to be confi ned 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 the 

fi rst 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 the 

admission of evidence that did not go to prove the charge as defi ned 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 meaning 

of 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 briefl y and returned a verdict that Burr was “not proved to 
The Aaron Burr Treason Trial

12

be guilty under this indictment by any evidence submitted to us. We therefore fi nd 

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 verdict 

of 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 Ohio 

on a charge of preparing and providing the means for a military expedition against 

Spain.
The Aaron Burr Treason Trial

13

Legal Questions Before the Federal Court

What constitutes “levying war” under the Constitution’s 

defi nition of treason?

A warlike gathering or assemblage of men having an appearance of force and in a 

situation 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 confi rmed 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 appeared 

in arms against his country.” Marshall explained that the Bollman opinion, properly 

understood, did not overthrow the authority of earlier settled cases and declared that 

any 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 fi ghting 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 to 

use force.

 After elaborately defi ning 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 the 

United 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 to 

testify might issue to the President, but he insisted that the executive was exempt 

from a subpoena duces tecum ordering him to produce certain specifi ed documents. 

Marshall responded by fi rst considering why the President was not exempt from a 

general 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 demands 

of his offi ce, 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 the 

accused. If documents contained information too sensitive for public disclosure, the 
The Aaron Burr Treason Trial

14

court would take care to keep them confi dential. In reply to the argument that the 

motion for a subpoena implied “disrespect” to the President, Marshall declared that 

the court felt “many, perhaps peculiar motives, for manifesting as guarded a respect 

for the chief magistrate of the union as is compatible with its offi cial 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, might 

satisfy 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 the 

attendance 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 found 

against Burr, he was not entitled to have the court issue subpoenas. Marshall replied 

that 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 of 

a 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” and 

therefore 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 of 

an 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 and 

immediate assistance in levying war could be considered as constructively present.

 Burr’s situation, the Chief Justice explained, was like that of an “accessory,” or 

subordinate 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” (the 
The Aaron Burr Treason Trial

15

chief actor or perpetrator) and accessory. To be implicated in treason, Burr had to be 

considered as a principal, charged with committing a specifi c 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, like 

an 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 the 

right 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 disqualifi ed, as were those who had formed an opinion not 

on the whole case but on a point so essential that it would have an unfair infl uence 

upon the verdict.

What had the federal courts decided in earlier cases of 

treason?

Although the lawyers and judges had plenty of English cases to consult about the 

law of treason, U.S. federal courts had decided only a few treason cases before United 

States v. Burr. Two of these grew out of the Whiskey Rebellion of 1794. Another case 

arose 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 with 

federal troops. The government entered treason prosecutions against a number of 

the 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-
The Aaron Burr Treason Trial

16

tions of Philip Vigol and John Mitchell, both of whom were later pardoned. In both 

cases Justice William Paterson delivered jury charges that expounded the meaning 

of “levying war.” Marshall quoted Paterson’s charges to support his argument that 

United States judges went beyond English judges in requiring “the actual exercise of 

force, the actual employment of some degree of violence,” to constitute a levying of 

war.

 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 fi rst trial of Fries, Justice James Iredell 

delivered a grand jury charge and Judge Richard Peters delivered a jury charge stating 

that 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 the 

United 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 pardoned 

by 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 the 

winter of 1807, just before the proceedings against Burr commenced. Chief Justice 

Marshall 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 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 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. 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 in 

support 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 
The Aaron Burr Treason Trial

17

of 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 to 

the substance of the decision.

 In his Burr case opinion of August 31, Marshall took great pains to explain and 

clarify 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.
The Aaron Burr Treason Trial

18

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 specifi ed 

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 the 

union. The “assemblage” (gathering or collection of persons) on the island was part 

of the grand design, they contended. As the mastermind of the plot, responsible for 

the 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 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.” 

2. Arms and the use of force were not necessary ingredients to 

constitute an act of levying war

The prosecution argued for a broad defi nition of “levying war.” Hay urged common 

sense and considerations of national security in contending that 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” (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 defi ned a levying of war as “a body of men . . . actually assembled for the purpose 

of effecting by force a treasonable purpose.” Under this defi nition, the prosecution 

contended, the armed group of thirty men on Blennerhassett’s Island constituted a 

levying of war.
The Aaron Burr Treason Trial

19

Lawyers’ Arguments and Strategies—The 

Defense

The defense asserted that Burr’s actions as described in the indictment did not represent a levying of war.

1. The indictment was fundamentally fl awed because Burr was not 

present on Blennerhassett’s Island at the time the alleged treasonable act 

occurred

Burr’s lawyers insisted that the Constitution narrowly defi ned treason as levying 

war against the United States, and that under this defi nition, 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 the 

criteria 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 specifi c 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 and 

Swartwout established the proposition that a person not present at the scene of the 

overt act could nevertheless be considered a traitor. That part of the opinion, they 

argued, was “obiter dictum,” unnecessary to the decision of the case in which it was 

given. 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 levying 

war

The defense argued for a restrictive defi nition of levying war. A mere enlisting of men 

or raising and embodying troops was not itself suffi cient to constitute an overt act 

of levying war. Arms were not necessarily military weapons, as rifl es 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 suffi cient display of men and means to effect the object by 

intimidation.” 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 array 

and have an unmistakable warlike appearance. According to defense attorneys, the 

opinion in Bollman and Swartwout, properly understood, supported this meaning 

of 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 be 

submitted to the jury. 
The Aaron Burr Treason Trial

20

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 of 

a person whose case presents many real intrinsic 

diffi culties which are infi nitely multiplied by 

extrinsic circumstances.” At the time of the Burr 

trial, Marshall had been Chief Justice of the United States for six years, having been nominated by 

President John Adams and confi rmed by the Senate in January 1801, just six weeks before Thomas 

Jefferson began his fi rst 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 of 

treason, was the more vexatious to Marshall for 

reopening the quarrel between the Jefferson administration and the federal judiciary, as played 

out earlier in the controversy over Marbury v. 

Madison in 1803 and the impeachment of Justice 

Samuel Chase in 1805. No one was more fully 

attuned to the awkward dilemma he faced in 

conducting this high-profi le case. To maintain 

a posture of strict judicial impartiality was a duty that was at once imperative and 

exceedingly diffi cult to fulfi ll 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 have 

suspected 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 in 

judgment 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 

John Marshall

Print by J.H.E. Whitney after Charles 

Balthazar Julien Fevret de Saint-Mémin, c. 1889. Library of Congress, 

Prints and Photographs Division 

[reproduction number LC-USZ62-

8499].
The Aaron Burr Treason Trial

21

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, defi ning the crime of treason under the Constitution in such 

narrow terms as to make conviction diffi cult—which he believed faithfully refl ected 

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 fi nished 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. After 

delivering the last of his rulings in Burr’s case in late October, Marshall “galloped to 

the mountains” for a much-needed vacation. He was relieved to be done “with the 

most 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 offi cial 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 and 

partisan animus to the prosecution of Burr. Jefferson’s nearly obsessive interest in the 

case, refl ected in numerous and lengthy letters to U.S. Attorney Hay, lends credence 

to the charge. Although offstage, Jefferson was directly involved in managing the 

government’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 holding 

that 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. 
The Aaron Burr Treason Trial

22

Jefferson, so he later stated, had distrusted 

Burr ever since Burr had entered national 

politics in the early 1790s. Burr proved his 

utter untrustworthiness in Jefferson’s eyes 

by his refusal to acknowledge Jefferson’s 

claim to the presidency after both received 

the same number of electoral votes in the 

election 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 in 

January 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 in 

a personal vendetta to destroy a hated 

political rival. The President unwittingly 

made it possible for the Burr prosecution 

to become an indictment and trial of his 

own administration.

 Even without this misstep, formidable 

obstacles stood in the way of a treason conviction. Jefferson could not have been 

pleased 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 a 

justice 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 in 

the recent institutional clashes between the executive and judicial branches. Jefferson 

complained that the judiciary was a Federalist bastion, intent upon assaulting the 

works 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 ruling 

that provoked Jefferson to wonder if the Constitution should be amended to make 

the 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 for 

a 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 

Thomas Jefferson

Published by Pendleton’s Lithography, from 

the original portrait by Gilbert Stuart. Library 

of Congress, Prints and Photographs Division 

[reproduction number LC-USZ62-117117].
The Aaron Burr Treason Trial

23

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 was 

evidently 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 then 

instructed 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, or 

in 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 in 

mind, Jefferson made no public recommendations, though he privately hoped for a 

constitutional 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 United 

States 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 to 

place himself fully in the hands of the 

formidable lawyers he hired to defend 

him. In a sense, the accused prisoner was 

lead counsel, advising and instructing his 

team about legal strategy and tactics. 

 A New Jersey native, Burr was the son 

of the second president of the College of 

New Jersey (later Princeton) and grandson of the noted theologian Jonathan Edwards. After graduating from the College 

of 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 offi cer, Burr performed with great 

valor, 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 and 

Photographs Division [reproduction number 

LC-USZ62-102555].
The Aaron Burr Treason Trial

24

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 same 

time his rivalry with Hamilton intensifi ed to the point that Burr issued a challenge 

that eventuated in a fatal duel in the summer of 1804. With his political career in 

ruins, Burr began forming plans he hoped would bring him glory and fortune in the 

American 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 other 

documents 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 by 

creditors who pursued him for the many unpaid bills from his western enterprise 

and subsequent legal proceedings. In June 1808, he embarked for England, remaining 
The Aaron Burr Treason Trial

25

there and in Europe for four years. Shortly after his return in 1812, he suffered the 

deaths of his grandson and daughter within months of each other. He resumed the 

practice of law in New York, but despite professional success he remained chronically 

in 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, district 

of Virginia

Blennerhassett has been called the most 

“conspicuous casualty” of Burr’s western enterprise, a sad, even tragic, victim of a grand 

scheme 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, a 

willing recruit to the New Yorker’s army.

 Born into an aristocratic Irish family, 

Blennerhassett received a good education 

and acquired a reputation for learning and 

culture. During the 1790s he joined an Irish 

revolutionary association agitating for independence from Britain. This endeavor got 

him into trouble with the authorities, which 

led to his decision to emigrate to America in 

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 fi rst met in early May 1805, when Burr stopped at the 

island during his western trip of that year. Burr saw in the Irishman a potential fi -

nancial backer, but he was probably more interested in the island as a staging point 

Harman Blennerhassett

Miniature portrait, artist unknown, 1796. 

Blennerhassett Island Historical State Park, 

Parkersburg, West Virginia.
The Aaron Burr Treason Trial

26

or redoubt for his contemplated expedition. For his part, Blennerhassett was fl attered 

by the attentions of a man who had been so prominent in American affairs. He was 

also 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. Blennerhassett 

advanced money, extended credit, and wrote newspaper essays that spoke of marching 

on Mexico and hinted at the breakaway of the west. In late summer of that year, Burr 

made 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 an 

indictment of Blennerhassett on a charge of treason and a misdemeanor charge of 

waging war on Spain. During Burr’s trial, Blennerhassett was confi ned to the state 

prison, where he wrote letters to his wife and kept a journal that throws much light 

on the proceedings. After Burr’s acquittal for treason, the U.S. attorney chose not to 

proceed 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 

profi table. After ten years, he sold the plantation and moved fi rst to New York and 

then 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. 
The Aaron Burr Treason Trial

27

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, and 

seeker 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 rose 

from middling circumstances as the son 

of a Maryland farmer to prominence as a 

Continental army offi cer 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, and 

began pressing for Kentucky’s separation 

from Virginia while promising Spain to 

protect and extend its American empire. 

As a Spanish agent, he received an annual 

pension and unlimited trading rights on 

the Mississippi River. In the 1790s, he reentered the army, eventually becoming commanding general, all the while continuing 

in Spanish service. (Wilkinson’s activities 

as a Spanish agent, frequently rumored during his lifetime, were confi rmed 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 fi rst encountered as a fellow offi cer 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 Jefferson 

of 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 the 

union, 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.

James Wilkinson

Chalk drawing by Charles Balthazar Julien 

Fevret de Saint-Mémin. National Portrait 

Gallery, Smithsonian Institution.
The Aaron Burr Treason Trial

28

 As the government’s chief witness against Burr, Wilkinson arrived in Richmond 

in 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, who 

spoke of Wilkinson as a “mammoth of iniquity” and as “the most fi nished 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 then 

the exasperated U.S. attorney had lost all confi dence 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 pursuit 

of 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 dislike 

of 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 

fi rst 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, had 

watched in admiration. Martin managed to stay in top form professionally over many 

years despite habitual drunkenness—“Lawyer Brandy Bottle,” as he was known—and 

careless personal appearance.
The Aaron Burr Treason Trial

29

 Martin arrived in Richmond in late 

May 1807, nearly a week after the grand 

jury convened. He rented a house near 

the Capitol, where Burr (after a stint in 

the state penitentiary) was kept under 

guard during the treason trial. While the 

grand 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, had 

proclaimed Burr “a traitor in the face of 

that country, which has rewarded him. He 

has let slip the dogs of war, the hell-hounds 

of persecution, to hunt down my friend.” 

For his part, Jefferson privately wondered if 

Martin should be committed “as particeps 

criminis with Burr” for having known in 

advance of the latter’s treasonable enterprise. Such a move would “put down this 

unprincipled & 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 

defi nition 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 when 

the 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 and 

everywhere, yet it is nowhere.” Revisiting a favorite theme, he implicitly censured an 

administration that had excited “public prejudices” against Burr to the point that a 

jury, even “if satisfi ed of his innocence, must have considerable fi rmness of mind to 

pronounce 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 

Luther Martin

Photoprint of painting by David Edwin. Library of Congress, Prints and Photographs 

Division [reproduction number LC-USZ62-

83712]. 
The Aaron Burr Treason Trial

30

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 an 

incapacitating 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 years 

of 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 Luther 

Martin as principal counsel for the accused 

traitor. Wickham was the acknowledged 

leader of the glittering Virginia bar and 

had 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 fi rst wife 

died, Wickham married the daughter of 

a prominent Richmond physician. Their 

home near Capitol Square was the center 

of an elegant social circle. Nearby was the 

home of John Marshall, a good friend and 

(before his elevation to the bench) rival at 

the bar. As the host of a celebrated dinner 

that 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 the 

initial 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 and 

denied 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 

John Wickham

Painting, unidentifi ed artist. National Portrait Gallery, Smithsonian Institution.
The Aaron Burr Treason Trial

31

argued that under the Constitution no person could be guilty of levying war unless 

personally present at the commission of the overt act. He also contended that the 

indictment 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 much 

of 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 never 

held public offi ce, content with the private practice of law and life as an affl uent Virginia gentleman. He entertained prominent visitors to Richmond, including noted 

American statesmen and English literary fi gures.

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 he 

read law. During the 1790s he established a successful practice in Petersburg and 

participated 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 Burr 

prosecution, Hay suffered the loss of his fi rst 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 signifi cantly increased the diffi culty of proving overt 

acts. Aware of this obstacle, the U.S. attorney dutifully conducted a prosecution that 

President 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 the 

advice 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 fi ve lawyers of exceptional talent, not counting 

Burr himself.

 At the preliminary hearing, Hay failed to persuade Chief Justice Marshall to 

commit Burr for treason. This was the fi rst of a series of prosecution defeats and 

a portent of the eventual outcome. Although the grand jury’s treason indictment 
The Aaron Burr Treason Trial

32

against Burr in June was a signifi cant 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 case 

by 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 that 

the 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 be 

warning 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, with 

whom 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 House 

of 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 nominated 

Hay as U.S. district judge for the Eastern District of Virginia, an offi ce 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 a 

disposition to prefer the pleasures of social life to professional toil. His practice spread 

to 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 fl air 

in a series of pen portraits published in 1803 as The Letters of a British Spy. Among 
The Aaron Burr Treason Trial

33

the subjects of these anonymous sketches 

were John Marshall, Edmund Randolph, 

and John Wickham, with whom Wirt was 

later associated at the Burr trial. When he 

joined 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 

legal disquisitions of his fellow lawyers. 

His most important speech occurred at 

the climax of the trial on August 25. He 

presented a well-reasoned argument portraying Burr as the mastermind who set in 

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 and 

Swartwout, 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 the 

Supreme 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. 

William Wirt

Engraving, St. Mémin Collection of Portraits, 

published by E. Dexter, New York, 1862. Library of Congress, Prints and Photographs 

Division [reproduction number LC-USZ62-

119242].
The Aaron Burr Treason Trial

34

Media Coverage and Public Debates

In ordinary circumstances, newspaper coverage of the early federal courts, even the 

Supreme Court, was infrequent. Although they paid much attention to the operations 

of the federal government, newspapers focused almost exclusively on proceedings in 

Congress and communications from the executive departments. Whole terms might 

pass 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 usually 

criminal, such as robbing the mail and counterfeiting notes of the Bank of the United 

States. 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 fi lling 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 

refl ecting the paper’s political point of view. Three Richmond newspapers fully 

reported the case, beginning with the preliminary examination in the spring and 

continuing through its fi nal disposition six months later: the Enquirer, edited by 

Thomas Ritchie; the Virginia Argus, edited by Samuel Pleasants; and the Virginia 

Gazette, edited by Augustine Davis. The Enquirer and Virginia Argus were supporters 

of the Jefferson administration, while the Virginia Gazette was Federalist in its politics. 

The papers hired reporters to take stenographic notes of the lawyers’ arguments and 

judge’s opinions in an attempt to reproduce them verbatim. After initial publication 

in 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 fi rst public reaction to the celebrated dinner 

hosted by John Wickham.

 
The Aaron Burr Treason Trial

35

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 astonishment 

that 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 offi cially pronounced, had affi xed 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 fi lled his columns 

with stories and articles clipped from other newspapers throughout the country and 

abroad. To counter Republican criticism of Marshall’s attendance at Wickham’s 

dinner, Davis inserted this piece from a Federalist newspaper in Philadelphia. 

 

Th e democratic papers of Richmond have commenced a most furious attack upon 

the character of Chief Justice Marshall. Th ey 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 out 

of doors, nor ran away himself; but sat and ate his dinner as deliberately, and to all 

appearance with as little concern as though perfectly unconscious that the presence 

of Col. Burr could either contaminate his principles, or blast his reputation! Th is is 

the head and front of his off ending.
The Aaron Burr Treason Trial

36

“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’s 

chief witness, and Luther Martin, Burr’s lead lawyer.

 

DRAMATIC INTELLIGENCE

 Th e Drama under rehearsal at the Richmond Th eatre, fi rst reported to be a Farce, 

is now said to be of the new species of Melo Drama.

 Th e arrival of Mr. Wilkinson, a performer of long standing, has excited much 

curiosity–the managers are sure of full houses from some time to come.

 Th e engagement of Mr. Martin, from the Th eatre at Baltimore, appears to have 

been 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 in 

this aff air. 

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 seven 

jurors, 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, to 

introduce my name into the newspapers, I deem it a duty to myself to relate briefl y the 

facts of the case as far as they concern me. Th e very strange misconception involved 

in this aff air I cannot comprehend, and I must therefore leave it to be explained by 

others.

 Whatever may be my impressions respecting General Wilkinson, I did not vote 

for presenting him on a charge of High Treason, for no vote on that question was taken 

by the Grand Jury, to my knowledge.

 On the motion to present him for misprision of treason, I was of opinion, after 
The Aaron Burr Treason Trial

37

the discussion of the subject, that the evidence did not warrant the presentment, and 

consequently I voted against it.

 For his infraction of the Constitution I voted to present him, because I thought 

the off ence 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 the 

people in putting down the Burr conspiracy. 

 

 Th e 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 than 

to confi rm the sentence of the executive and execute the off ender. Th is they consider 

as maintaining the rights of the people.

 While the democratic faction are thus feelingly alive to what they aff ect to consider as usurpation on the part of the Judiciary, they are perfectly unconcerned at the 

most 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. Jeff erson 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 United 

States, and under the administration of Mr. Jeff erson, 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 the 

winter 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. Jeff erson and his offi cers; for upon examination it was found that against some 

of them the government had not even an accusation to bring, and against none of 

them 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. 
The Aaron Burr Treason Trial

38

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 the 

furor over the Burr trial, Congress did not act upon proposals to make easier the 

removal 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.

 Th e extraordinary proceedings in the case of AARON BURR . . . clearly shew 

that 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. Th at 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 infl uence; to be free from the smallest suspicion of 

being governed by fear, favor, or aff ection; and to enjoy salaries suffi cient to set them 

far above the temptation of bribery or corruption.

 But this desirable independence of the Judges is very diff erent from that which 

places 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 Marshall

must 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 declared 

on the same subject; that as he looked down with contempt on the opinions of the 

people, 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 cases 

of others should be compelled to obey it strictly themselves. True it is that a Judge 

ought 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 
The Aaron Burr Treason Trial

39

systematically hostile to the liberties of the people, or injurious to their safety, even 

though no proof of corrupt motives can be exhibited against him, he ought to be

removed from offi ce.

Offi ces ought not to be considered as the property of individuals, but of the public; 

and those who fi ll them are only trustees for the general good. Th ey do not hold their 

honors and salaries for their own sakes; that they may live at ease and fatten on the 

treasury; but merely for the purpose of performing useful and laborious duties, for 

which they are entitled to, and ought to receive, an adequate compensation. A removal 

from offi ce 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 the 

possessing, and acting under the guidance of erroneous and dangerous principles, 

are all good and suffi cient reasons for removing a Judge from offi ce–If the point is 

frequently otherwise considered, it must arise from the mistaken impressions generally entertained concerning the independence of the Judiciary, or from the idea 

that the offi ce 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 offi ce, as the 

constitution of the United States now stands.

 It is time, therefore, that an amendment should be proposed authorising and 

requiring the President to remove any Judge from offi ce at the request of a majority of both houses of Congress. Such an amendment could not have the eff ect of 

producing any improper infl uence on the minds of the Judges, or of diminishing 

their legitimate and useful independence. A good Judge would never be prevented from 

doing justice by the fear of losing his place, and a bad one ought to be subject to the 

wholesome concord of his country. Th e opinion of the majority of both houses of 

Congress would generally be on the side of justice; and, if it sometimes erred, it is 

better 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 confl ict with that of the great body 

of 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 and 

active in the cause of republicanism, will not be hindmost on this occasion; but will 

take up the subject early in the session, and propose the amendment as speedily as 

possible.
The Aaron Burr Treason Trial

40

Historical Documents Related to the Burr 

Case

All of the documents are transcribed as they appear in the original. The italicized 

text 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 fi rst 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 the 

letter 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 fi rst 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. Th e eastern detachments, from diff erent points and 

under diff erent pretence, will rendezvous on Ohio on 1 November.

 Every Th ing internal and external favor our view. Naval protection of England is 

secured. Truxton is going to Jamaica to arrange with the admiral there and will meet 
The Aaron Burr Treason Trial

41

us at Mississippi. England, a navy of the United States ready to join, and fi nal 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 offi cers. 

 Burr will proceed westward 1 August–never to return. With him go his daughter 

and grandson. Th e Husband will follow in October with a corps of worthys. Send 

forthwith an intelligent and confi dential friend with whom Burr may confer. He shall 

return immediately with further interesting details. Th is is essential to concert and 

harmony 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 your 

messenger send me 4 or 5 of the commissions of your offi cers which you can borrow 

under any pretence you please. Th ey shall be returned faithfully. Already an order to 

the contractor to forward 6 months provisions to points you may name. Th is shall 

not 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 fi fteenth 

November, with the fi rst 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; then 

to determine whether it will be expedient in the fi rst instance to seize on or pass by 

B. R. On receipt of this send me an answer. Draw on me for all expenses. 

 Th e people of the country to which we are going are prepared to receive us--their 

agents, 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.

 Th e gods invite us to glory and fortune. It remains to be seen whether we deserve 

the boons.

 Th e 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 fi delity and incapable of relating 

them 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 a 

reverence for your Character and may be embarrassed in your presence–put him at 

ease, and he will satisfy you. 

 Doctor Bollman equally Confi dential better informed on the subject & more 

enlightened will hand this duplicate.
The Aaron Burr Treason Trial

42

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 

offi cers. 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 bring 

certain 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 the 

requested 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 to 

prepare 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.]

 

 Th e constitution and laws of the United States will now be considered for the 

purpose of ascertaining how they bear upon the question. Th e eighth [sixth] amendment to the constitution gives to the accused, “in all criminal prosecutions, a right 

to a speedy and public trial, and to compulsory process for obtaining witnesses in 

his favor.” Th e right given by this article must be deemed sacred by the courts, and 

the article should be so construed as to be something more than a dead letter. What 

can more eff ectually elude the right to a speedy trial than the declaration that the 

accused shall be disabled from preparing for it until an indictment shall be found 

against 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 benefi t of the provision 

which entitles him to compulsory process as soon as he is brought into court. Th is 

observation derives additional force from a consideration of the manner in which 

this subject has been contemplated by congress. It is obviously the intention of the 

national legislature, that in all capital cases the accused shall be entitled to process 

before indictment found. Th e 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 capital 

off ence,) shall be allowed and admitted in his said defence to make any proof that 

he or they can produce by lawful witness or witnesses, and shall have the like process 

of 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 the 

prosecution against them.” 
The Aaron Burr Treason Trial

43

Marshall proceeded to inquire whether a subpoena duces tecum could issue to the 

President, taking up fi rst 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? This 

matter had come up a few years earlier in the case of Marbury v. Madison, when a 

party sought the Supreme Court’s intervention to command the executive to deliver 

a commission. As President during the Burr trial, Jefferson was perfectly willing 

to cooperate in seeing that the defendant obtain the information and testimony 

necessary for his defense. He would even testify, though by deposition rather than 

personal 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. 

Th e 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. Th e 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. Th e 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 diff erence which exist between the 

fi rst magistrate in England and the fi rst 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 offi cer 

of the government, may be impeached, and may be removed from offi ce on high 

crimes 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 the 

people again.

 How essentially this diff erence of circumstances must vary the policy of the laws 

of the two countries, reference to the personal dignity of the executive chief, will be 

perceived by every person. In this respect the fi rst magistrate of the Union may more 

properly be likened to the fi rst magistrate of a state; at any rate, under the former 
The Aaron Burr Treason Trial

44

Confederation; and it is not known ever to have been doubted, but that the chief 

magistrate of a state might be served with a subpoena ad testifi candum.

 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 from 

the general provisions of the constitution, it would be, because his duties as chief 

magistrate demand his whole time for national objects. But it is apparent that this 

demand is not unremitting; and, if it should exist at the time when his attendance on 

a 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 have 

the 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 United 

States, 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 to 

issue a subpoena to a person fi lling the exalted position of the chief magistrate is a 

duty 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 diff erence 

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 diff erence with respect to 

the right to obtain it. Th e guard, furnished to this high offi cer, to protect him from 

being 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 which 

is to precede their being issued.

 If, in being summoned to give his personal attendance to testify, the law does not 

discriminate between the president and a private citizen, what foundation is there 

for the opinion that this diff erence 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? Th e court can perceive no foundation for such an opinion. 

Th e propriety of introducing any paper into a case, as testimony, must depend on the 

character 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 view 

of such a paper.
The Aaron Burr Treason Trial

45

Subpoena duces tecum, June 13, 1807

The court issued this subpoena in consequence of Marshall’s opinion of June 13 in 

support 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 brother 

of the Chief Justice. 

 [Document Source: United States v. Burr, U.S. Circuit Court, Va., Ended Cases 

(Restored), Library of Virginia.]

 

Th e president of the United States of America

 To Th omas Jeff erson, 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 fi fth circuit, in the Virginia District in the city of 

Richmond, at the Court now sitting forthwith to testify in behalf of Aaron Burr in 

a controversy now depending, between the United States and the said Burr, and to 

bring with you the letter from General James Wilkinson dated the twenty fi rst day 

of October 1806 mentioned in the message of the president of the twenty second 

of January 1807, to both houses of Congress together with the documents accompanying the same letter and copy of the answer of you the said Th omas Jeff erson 

or any one by your authority to the said letter and also copies of all the orders and 

instructions given by the president of the United States either directly or through 

the departments of war and of the navy to the offi cers of the Army and Navy at or 

near 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 the 

thirty fi rst year of the Independence of the United States of America.

 Wm Marshall, Clk

 Th e 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 the 

United States. William Marshall

Burr’s subjoined note to the subpoena:

 Th e 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 suffi cient observance of the process without 

the personal attendance of any or either of the persons therein named, but in case 

of such transmission it is expected that the copies of the orders and instructions to 
The Aaron Burr Treason Trial

46

the naval and military offi cers be accompanied by the Certifi cates of all the persons 

named in the process declaring that no other orders or instructions have been given 

to the said naval and military offi cers 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 fi rst be indicted by a grand 

jury before being tried by a petit jury. An indictment is a written accusation framed 

by 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 of 

whom had to concur that the facts alleged were true. Foreman John Randolph’s endorsement of “a true bill” signifi ed 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”) and 

against 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 irregular 

verdict, but Chief Justice Marshall allowed it to stand as the jury wished, while noting that the entry on the offi cial 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 fi fth Circuit 

and Virginia district: Th e grand inquest of the United States of America, for the 

Virginia 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 fi delity 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 and 

seduced by the instigation of the devil, wickedly devising and intending 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 tenth day of December, 

in the year of Christ one thousand eight hundred and six at a certain place called and 
The Aaron Burr Treason Trial

47

known by the name of Blannerhassetts island in the County of Wood and district 

of Virginia aforesaid, and within the jurisdiction of this Court, with force and arms, 

unlawfully falsely, maliciously and traitorously did compass imagine and intend to 

raise and levy war, insurrection and rebellion against the said United States, and in 

order to fulfi l and bring to eff ect the said traitorous compassings imaginations and 

intentions 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 County 

of Wood aforesaid in the district of Virginia aforesaid and within the jurisdiction of 

this 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 off ensive as defensive, being then and 

there unlawfully maliciously and 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 the said United 

States, and then and there that is to say on the day and in the year aforesaid at the 

island aforesaid, commonly called Blannerhassett’s island in the County aforesaid of 

Wood, within the Virginia district, and 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, contrary to the duty of their said allegiance and fi delity, against the constitution peace and dignity of the said United 

States and against the form of the act of the Congress of the said United States in 

such 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 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 fi delity 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 and seduced by the instigation of the devil, wickedly devising and 

intending 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 hundred 

and six, at a certain place, called and known by the name of Blannerhassetts island 

in the County of Wood and district of Virginia aforesaid and within the jurisdiction 

of this Court, with force and arms, unlawfully, falsely, maliciously and traitorously 

did compass, imagine and intend to raise and levy war, insurrection and rebellion 
The Aaron Burr Treason Trial

48

against the said United States, and in order to fulfi l and bring to eff ect 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] day 

of 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 of 

this 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 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 off ensive 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 the 

said 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 fulfi l and carry into eff ect the said traitorous 

compassings, imaginations and intentions of him the said Aaron Burr against the 

said 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 and 

within the jurisdiction of this Court, did array themselves in a warlike manner, with 

guns and other weapons off ensive and defensive, and did proceed from the said island down the river Ohio, in the County aforesaid within the Virginia district, and 

within the jurisdiction of this Court, on the said eleventh day of December in the 

year 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 fi delity, against the Constitution peace and dignity of the said United 

States and against the form of the act of the Congress of the United States in such 

case 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 fi nd that Aaron Burr is 

not proved to be guilty under this Indictment by any evidence submitted to us. We 

therefore fi nd him not Guilty. / E. Carrington/ foreman.”] 
The Aaron Burr Treason Trial

49

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 about 

treason 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 not 

deny 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 

defi nition of the crime. In the questions he raised about the proof of overt acts, he 

hinted 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 diffi culties which are infi nitely multiplied by extrinsic circumstances. 

It would have been my earnest wish to consult with all my brethren of the bench 

on the various intricate points that occur, on which a contrariety of opinion ought 

not to prevail in the diff erent circuits, but which cannot easily be carried before the 

supreme court. Sincerely do I lament that this wish cannot be completely indulged. 

. . .

 Many points of diffi culty 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 some 

which 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 the 

assemblage 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? . . .

 Th e 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? . . .

 Th e English books contain many cases in which, for the purpose of proving the 

general objects of a conspiracy, the acts & writings of one conspirator have been given 

in evidence against others. But in England, treason may be committed by imagin-
The Aaron Burr Treason Trial

50

ing the death of the King, & a conspiracy is an overt act of this treason. Th e general 

objects 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; & in 

this 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 believe 

that 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 other 

open deed. . . . 

 I am aware of the unwillingness with which a Judge will commit himself by an 

opinion 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 in 

its 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 repugnance 

to giving contradictory decisions on the same points. Such a circumstance would be 

disreputable to the Judges themselves as well as to our judicial system. Th is consideration suggests the propriety of a consultation on new & diffi cult 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 the 

next 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 fi rst 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 fi rst proposition, Mr. W. contended that the clauses of the 

constitution which declare 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,” 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 
The Aaron Burr Treason Trial

51

import of the words. Th e constitution is a new and original compact between the 

people 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, artifi cial rules of construction, drawn from the common law and the usages 

of courts in construing statutes, cannot be resorted to, to prove that these words of 

the constitution are to be construed, not according to their natural import, but that 

an artifi cial meaning, drawn from the statute and common law of England, is to be 

affi xed to them, entirely diff erent.

Here Wickham argued that treason in the United States was a crime created by the 

Constitution 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 the 

counsel for the prosecution that we have any common law belonging to the United 

States at large. I always did believe, and still believe, that we have no common law 

for the United States, especially in criminal cases. Th e only ground on which the 

common law becomes a rule of decision in the federal courts, is under that clause 

in the judiciary law, which makes the laws of the several states a rule of decision, as 

far as they respectively apply. Th e common law is part of the law of Virginia, and 

the act of congress has adopted the laws of Virginia as the rule of decision in cases 

where they apply. With respect to crimes and off ences 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 United 

States have in that character no common law, and that they must be created by 

statute. Unquestionably the gentlemen will not deny this uniformity; they will not 

contend 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. Th at the 

United States have no common law, and that off ences against them must be created 

and prohibited by statute, is the opinion of the learned Judge Chase; and I believe 

that this opinion received the unqualifi ed approbation of those who thought most 

unfavorably of his opinions and judicial conduct on other occasions. Now, as there is 

no 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 off ence, against a newly created government.
The Aaron Burr Treason Trial

52

The Constitution, said Wickham, must be interpreted according to the intention 

of the framers, whose wise understanding of human nature led them to prescribe a 

strict defi nition of treason so that it would not become an instrument of government 

or party tyranny. 

 Th is 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 same 

narrow, technical rules that apply to a statute made for altering some provision of the 

common law; but that such a construction should be given as is consistent not only 

with the letter but the spirit in which the great palladium of our liberties was formed.

Th e object of the American constitution was to perpetuate the liberties of the people 

of this country. Th e framers of the instrument well knew the dreadful punishments 

infl icted, and the grievous oppressions produced, by constructive treasons in other 

countries, as well where the primary object was the security of the throne as where 

the public good was the pretext. Th ose gentlemen well knew from history, ancient 

as well as modern, that, in every age and climate, where the people enjoyed even the 

semblance 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 those 

in 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. Th ey knew that mankind are always 

the same, and that the same passions and vices must exist, though sometimes under 

diff erent modifi cations, until the human race itself be extinct. Th at a repetition of 

the same scenes which have deluged other countries with their best blood might 

take place here they well knew, and endeavored as far as possible to guard against the 

evil by a constitutional sanction. Th ey 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. 

Th e events which have since occurred in another country, and the suff erings under 

Robespierre, show how well human nature was understood by those who framed our 

constitution. Th e language which they have used for this purpose is plain, simple, 

and perspicuous. Th ere is no occasion to resort to the rules of construction to fi x its 

meaning. It explains itself. Treason is to consist in levying war against the United 

States, and it must be public or open war; two witnesses must prove that there has 

been an overt act. Th e spirit and object of this constitutional provision are equally 

clear. Th e 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; that 

any man might become the victim of private accusation; that declarations might be 

proved which were never made; and therefore they meant, as they have said, that 

no man should be the victim of such secret crimination; but that the punishment of 

this off ence 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 the 

crime of levying war?”

 In support of the fourth proposition, Mr. W. went into an examination of the 

question, “What properly constitutes the crime of levying war?” He contended that 

force 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 suffi cient display of men and means to eff ect the object by 

intimidation. If a body of men, suffi cient in number and means to take the capital, 

and all the property in it, should march into the city, and fi nd no opposition, they 

would accomplish their object by terror of numbers and warlike appearance. Th is 

is denominated potential force; the object is accomplished without the actual exertion of force, though force suffi cient to accomplish it is employed. He referred to 

the trial of Fries, to show that even Mr. Rawle and Mr. Sitgreaves, the counsel for 

the 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 are 

necessary 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 the 

supreme 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 other 

authorities which are here omitted, and insisted that the evidence wholly failed to 

show that there had been anything like force, or violence, or military array displayed 

on 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 should 

have 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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54

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 you 

in 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, he 

thought he had reared a Gothic edifi ce 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 are 

seeking truth and not victory, whether right or wrong, have no reason to turn our 

eyes from any source of light which presents itself, and least of all from a source so 

high and so respectable as the decision of the supreme court of the United States. 

Th e inquiry is whether the presence at the overt act be necessary to make a man a 

traitor. Th e gentlemen say that it is necessary—that he cannot be a principal in the 

treason 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 eff ecting 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.” 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, the 

planner 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 fl ed from the 

storms of his own country to fi nd quiet in ours. His history shows that war is not the 

natural 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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55

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 our 

western forests. But he carried with him taste and science and wealth; and lo! the 

desert smiled. Possessing himself of a beautiful island in the Ohio, he rears upon it a 

palace, and decorates it with every romantic embellishment of fancy. A shrubbery, that 

Shenstone 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 off ers to him all the secrets and mysteries of nature. Peace, 

tranquility, and innocence shed their mingled delights around him. And to crown the 

enchantment of the scene, a wife who is said to be lovely even beyond her sex and 

graced with every accomplishment that can render it irresistible, had blessed him with 

her love, and made him the father of several children. Th e evidence would convince 

you that this is but a faint picture of the real life. In the midst of all this peace, this 

innocent simplicity and this tranquility, this feast of the mind, this pure banquet of 

the heart, the destroyer comes; he comes to change this paradise into a hell. Yet the 

fl owers do not wither at his approach. No monitory shuddering through the bosom 

of 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 had 

lately held in his country, he soon fi nds his way to their hearts, by the dignity and 

elegance of his demeanor, the light and beauty of his conversation, and the seductive 

and fascinating power of his address. Th e conquest was not diffi cult. Innocence is 

ever 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 heart 

is thrown open, and all who choose it enter. Such was the state of Eden when the 

serpent entered its bowers. Th e prisoner, in a more engaging form, winding himself 

into the open and unpracticed heart of the unfortunate Blennerhassett, found but 

little diffi culty in changing the native character of that heart and the objects of its 

aff ection. By degrees he infuses into it the poison of his own ambition. He breathes 

into it the fi re 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. In 

a short time the whole man is changed; and every object of his former delight is 

relinquished. No more he enjoys the tranquil scene; it has become fl at 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 and 

the cannon’s roar. Even the prattle of his babes, once so sweet, no longer aff ects him; 

and the angel smile of his wife, which hitherto touched his bosom with ecstasy so 

unspeakable, is now unseen and unfelt. Greater objects have taken possession of his 

soul. His imagination has been dazzled by visions of diadems, of stars and garters and 

titles of nobility. He has been taught to burn with restless emulation at the names of 

great heroes and conquerors. His enchanted island is destined soon to relapse into a 
The Aaron Burr Treason Trial

56

wilderness; and in a few months we fi nd the beautiful and tender partner of his bosom, 

whom he lately “permitted not the winds of ” summer “to visit too roughly,” we fi nd 

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 from 

his 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 overwhelmed 

by 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, this 

man is to be called the principal off ender, 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 a 

perversion 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 fi nish 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 Justice 

Marshall delivered the principal opinion in the Burr treason trial. Broadly speaking, the opinion addressed the question, What is the meaning of treason under the 

Constitution? 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 fi rst excerpt, the Chief Justice rejected the defense’s argument that the 

opinion was “extrajudicial,” that is, not directly related to the court’s decision and 

thus 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 in 

treason. 

[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. Th is 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 be 

remembered 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 from 

their decisions. Opposite judgments on the point would have presented a state of 

things infi nitely to be deplored by all. It was not surprising, then, that they should 

have made some attempt to settle principles which would probably occur, and which 

were in some degree connected with the point before them. Th e court had employed 

some 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 affi rm the 

contrary, the court proceeded to observe: “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 actually 

assembled for the purpose of eff ecting 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.” 

Th is 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 to 

disobey 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 the 

supreme court for reconsideration, in a case in which it would directly occur and be 

fully argued. Th e court which gave this opinion was composed of four judges. At the 

time I thought them unanimous, but I have since had reason to suspect that one of 

them, 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 particular 

point 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 that 

judge 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, feel 

no objection, although I then thought and still think the opinion perfectly correct, to 

carry 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 have 

argued as if the supreme court had adopted the whole doctrine of the English books 

on the subject of accessories to treason. But certainly such is not the fact. Th ose only 

who perform a part, and who are leagued in the conspiracy, are declared to be traitors. 

To complete the defi nition both circumstances must concur. Th ey must “perform a 

part,” which will furnish the overt act; and they must be “leagued in conspiracy.” Th e 

person who comes within this description in the opinion of the court levies war. Th e 

present motion, however, does not rest upon this point; for if under this indictment 
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58

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 arising 

from the Bollman and Swartwout opinion concerning the meaning of “levying war.” 

He denied the prosecution’s contention that the Supreme Court countenanced the 

doctrine that neither arms nor force was an indispensable ingredient in levying 

war.

 But it is said all these authorities have been overruled by the decision of the 

supreme 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 the 

judges 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 prostrate 

a principle which seems to have been so well established. Had the intention been 

entertained to make so material a change in this respect, the court ought to have 

expressly 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 or 

not, 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 to 

be 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 the 

defi nitions 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 defi nitions 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. 

Th at opinion is, that an individual may be guilty of treason “who has not appeared 

in arms against his country; that if war be actually levied, that is, if a body of men 

be actually assembled for the purpose of eff ecting 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.”
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 Th is opinion does not touch the case of a person who advises or procures an 

assemblage, and does nothing further. Th e advising, certainly, and perhaps the procuring, is more in the nature of a conspiracy to levy war than of the actual levying 

of 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 act 

of levying war. Th at 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. Th is 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 admission 

of the doctrine that he who procures an act may be indicted as having performed 

that 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 when 

that 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 the 

case. 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. Th at this court dares not usurp power is most true. Th at this 

court 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. Th at gentlemen, in a case 
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60

the most interesting, in the zeal with which they advocate particular opinions, and 

under 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 ascribe 

that 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 be 

viewed 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 and 

Joanne 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 the 

United 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.