The Trial of Aaron Burr

Richmond Virginia in the early 1800s

The trial of Aaron Burr was held in the town of Richmond, Virginia. The choice by the government to hold the trial in this particular location was a made for a very specific reason. While the stories of Burr's travels and the talk of his treason had encompassed most of the western frontier, there was very little actual action to tie him to the conspiracy. This would have been a problem because they needed for Burr to have assembled men with a treasonous purpose.

However, Supreme Court Chief Justice John Marshall had made a ruling earlier in the year at a trial of two men who had been involved in the conspiracy. In dictum in the his earlier decision, Marshall said that in order to support a charge of Treason, "war must be actually levied To conspire to levy war, and actually to levy war, are distinct offenses. The first must be brought into open action by an assemblage of men for a purpose treasonable in itself, or the fact of levying cannot have been committed." This would have appeared to exonerate Burr because he had not been apart of any assemblage of men who made any outward signs of war in Virginia. However, in his opinion Marshall also said that one could, "appear in arms against his country If a body of men actually assembled for the purpose if effecting by force a treasonable purpose; all those who perform any part, however minute, or however remote from the scene of this action, and who are actually leagued in the general conspiracy, are to be considered traitors."

This dicta provided the opportunity to charge Burr, if he could be tied to the conspiracy, for the actions at Blannerhassett's Island. It was there that there had been an actual assemblage of men, a gathering of arms, and an attack by the militia, even if the militia had nothing to really attack. Because Blennerhasset's Island was encompassed within the territory of Virginia, the Burr trial could be held in Virginia. Prosecution in Virginia also allowed the government to keep the trial in relatively close proximity to Washington, where President Jefferson could keep a watchful eye on the proceedings.

In March of 1807 that the biggest trial the recently born United States of America had seen began in Richmond, Virginia. The sides began to gather the attorneys who would represent them in the case. On the defense side, the greatest asset was the defendant, Aaron Burr, one of the most brilliant trial attorney's the young nation had produced. At his side stood a team of four attorneys, Edmund Randolph, John Wickam, Benjamin Botts, and John Baker. The prosecution was to be headed by George Hay. He would be assisted by William Wirt, and Alexander McRae. These three were not the real driving force behind the prosecution, it was clear to everyone involved that Jefferson was calling the shots from Washington, and it was to him that the prosecution must ultimately answer. With the two sides now assembled against each other, a third figure in the trial became vitally important: the judge. Unfortunately for the government, when they chose to have the trial in Virginia, they also came under the jurisdiction of John Marshall, a bitter political opponent of President Jefferson. This brought to Richmond the influence of three of the biggest names in the political scene of the young republic, Marshall, Jefferson, and Burr.

The first round of the trial was conducted in the back room of the Eagle's Tavern, where Marshall, in his capacity as circuit court judge, first had Burr brought before him. The government asked that Burr be committed on charges of misdemeanor and treason. Marshall could not rule on this without argument so they adjourned to the next day when the arguments of the parties where heard. The two sides presented there arguments the government had the legendary cipher letter and affidavits of several people linking Burr to the conspiracy. Marshall found these, while in need of further questioning at the trial, sufficient to commit Burr on the charge of misdemeanor, namely attempting to levy war against Spain. However Marshall could not find in the evidence any testimony of an assemblage of men to wage war on the United States. He said that these events had happened months before and the government had failed to produce any witnesses to them so he did not find enough to commit Burr on a charge of treason. This ruling infuriated Jefferson, who would not stand to have Burr tried for a mere misdemeanor. His political reputation was on the line, the whole country new Jefferson had been saying Burr was a traitor and he had to back this up. He sent his people out into the countryside to scour every town and village throughout the country to find or bully witnesses into court that could testify to the assemblage of men that would be required to get Burr charged with and convicted of treason.

The trial started on The 22nd of May 1807, with the impaneling of the grand jury. By this time word had spread throughout the country on what was going on in Richmond. People began to flood into Richmond to see the big show. The town whose population at the time was only five thousand swelled to almost ten thousand as people from all walks of life descended upon it. The Boardinghouses and hotels where packed to the point of overflowing. The poorer people and country folk slept in tents and covered wagons, or bedded down by the river under the stars. Burly mountain men, gentlemen from New York, and fine southern ladies all rubbed elbows as they crowded in and around the State house to witness the goings on. The trial had been moved from its original home in the state court room to the chamber of delegates at the state capital to accommodate the crowds. During the day this was the focus of attention, but at night the taverns were packed with the crowds drinking and carousing. The popular sport of the trial was to wager, sometimes enormous sums, on the outcome of the trial as a whole, or in any part of it. This was truly not only the greatest trial, but the greatest spectacle the young nation had yet seen. As the trial opened it became quite clear who was going to take the lead for the defense. Aaron Burr was to do most of the arguing, objecting, and examining of witnesses throughout the trial. To the point where at times it seemed the other defense lawyers where there merely as window dressing. His first act was to object to the content of the men on his Grand Jury and to the procedures which had been violated in bringing him to trial. In addition he began to grandstand and condemn Jefferson and the government for their actions, not just against him but in general. This tactic would run as a general theme throughout the proceedings. These objections where heard and denied by Marshal. On May 25th the prosecution asked that the court allow the charge of treason to be put before the Grand Jury. Even though the court had once denied the charge they felt they had new evidence that would support it. These sort of objections and grandstanding, from both sides continued as they waited, as both sides knew for the key witness General Wilkinson. However, just as things had begun to become dull, Burr rose on June 9th and asked for a subpoena of President Jefferson. He wished to have all of the documents relating to correspondence between the President and General Wilkinson regarding this matter. He had requested the government produce them, but to this point he had not seen them. This through the prosecution into an uproar. The two sides debated the merits of subpoena along with the ability to subpoena the President. Over a period of four days the lawyers traded insults and legal arguments until Marshall finally decided to issue a subpoena duchess tecum for Jefferson. Now the question was how Jefferson would respond. Jefferson did not make any formal comment on the subpoena nor did he make any effort to come to Richmond to answer the subpoena. Instead he took a different route in his subpoena Burr said he would be happy to have the documents in question sent to the court. This is what, in fact, Jefferson did. He instructed his aids to get the materials Burr had requested and deliver them to Richmond. While the subpoena was sent to Washington and the court awaited Jefferson's response the governments witnesses began to arrive in Richmond. As they arrived they were brought before the Grand Jury and questioned, among the numerous witnesses called was future President Andrew Jackson.

Finally the star prosecution witness arrived, General Wilkinson. On June 16th he took the stand in front of the Grand Jury and told his story. He spoke of the cipher letter, the plans for war on Spain and Burr's treasonous plans for the western states. Based largely on what even the members of the Grand Jury characterized as questionable testimony they indicted Burr and Blennerhassett on both misdemeanor and treason. The next two days would follow with various other indictments for others involved in the conspiracy.

The trial of Aaron Burr was to begin of the 3rd of August but the government through Hay stated they were not prepared to start the trial at that point. The defense objected to any postponement stating that the government had been given more that enough time to prepare their case. Marshal granted the postponement seeing it as a good opportunity to appear impartial. Finally on August 10th the trial began with jury selection. This process was to say the least problematic. Every person in the country had heard about the trial and most had already formed opinions on Burr's guilt or innocence. After four days of jury selection only two unbiased Juror's had been selected. It was at this point that Burr chose a bold strategy, he agreed two have the remaining eight jurors selected basically at random so the trial could commence.

Hay gave the opening statement for the prosecution. In it he admitted tot he legal fiction they were basing the case around. He told the jury that they were going to prove that there was a conspiracy to overthrow the United States government, and Burr was an willing part of that conspiracy. They were going to prove that an overt act of aggression took place the night of December 10th 1806 on Blennerhassett's Island and that Burr knew and supported this act. Because of these factors and Marshall's earlier ruling Burr could be convicted of treason.

The state then called their first witness General William Eaton. This brought an immediate objection from Burr. He stated that the prosecution must first prove the overt act, and them they could go into their corroborating evidence. The court knew what testimony Eaton was there to present and this was clearly not what the prosecution was doing. The prosecution responded that it was their prerogative to use whichever strategy of prosecution they saw fit in this case. In this case they had chosen to precede in chronological order. After listening to arguments from both sides Marshall ruled in favor of the prosecution. He concluded that the crime of treason included both fact and intention, both had to be proved and the prosecution could do that in any order they chose. However he cautioned the prosecution that the evidence they presented must be limited to that which was relevant to this particular case. With this decided Eaton took the stand for his testimony. He began by stating that "concerning any overt act, which goes to prove Aaron Burr guilty of treason I know nothing." He then preceded to tell the court the elaborate story of Burr's treasonous acts before the time of the supposed act. His testimony, however, much like that in his deposition, was embellished and in some part fantasy. On cross examination the defense had him admit that the government had recently paid on his long unheeded claim against them. Due to the outlandishness of some of his claims and the payment from the government Eaton left the stand leaving what he said with more than some room to be doubted.

The nest to take the stand was Peter Taylor who was Blennerhassett's gardener. He provided testimony to the conversations between Burr and his employer and the amount of excitement that surrounded the Island during those conversations and on the night of the 10th of December. The next were the Morgan's who had also had conversations with Burr. They gave testimony not so much to what Burr said, but the spirit in which it was said. A few more witnesses were called who added nothing of importance to the testimony. Up to this point the prosecution had only introduced evidence of intentions, they had not introduced any evidence of an overt act. The next witness they called was called to introduce this long awaited evidence. The prosecution called Jacob Allbright, a laborer who had been on the island the night of December 10th. He testified to the presence of armed men on the island, and that these men were preparing for some type of expedition. He further testified that at some point during the evening General Tupper of the Marietta Militia had come onto the island. Allbright testified that Tupper stepped into the middle of a circle of these armed men and asked them to disperse. The men raised their guns upon him. This was the overt act that Hay was basing his case, though it was not much of an act. The defense on cross examination inquired if Allbright would recognize Tupper if he saw him. Allbright responded he would. The defense asked if he could point Tupper out in the courtroom, and Allbright did. What the defense left unsaid is what everyone in the courtroom realized. If Tupper was sitting in the courtroom why wasn't the prosecution calling him to verify what Allbright was saying? The prosecution then called a few more witnesses but none added anything new or interesting, and no further evidence of any overt act was given. At this point, on August 20th, the Defense rose and asked if Hay had any more evidence of an overt act. Hay was forced to admit he did not. The defense then moved for a motion to halt the evidence because the prosecution had not and could not prove its case. What preceded was nine days of arguments from both sides, mainly the defense, on the motion. After some of the most eloquent arguments yet recorded in the nations short history. Marshall then retired to consider the motion and give his decision.

Click Here to Return to Main Page