The Trial of Aaron Burr III--The Legal Issues

When all was said and done, and Aaron Burr "moved" with his men down the Ohio and Mississippi in December 1806 (he had actually gone ahead of the main contingent), he only had a motley crew of a few dozen supporters on four boats. In fact, it was the failure of his venture that proved to be one of the reasons for his crowning success in the treason trials: how could anyone really believe that such a small and insignificant collection of men could realistically hope to levy war against the great United States? There were more precise legal issues, of course, which will be mentioned below.

When he was finally captured in Bayou Pierre, LA Territory in January 1807, Burr had already been acquitted by one grand jury in KY, where he was brought up for treason charges in Fall 1806. Then, a Mississippi Territorial jury also acquitted him in Jan. 1807. Though the judge requested that Burr show up again after the trial to be in military custody, Burr skipped out of town, trying to hightail it through southern MS/AL. He finally was captured on the night of Feb. 18/19, 1807 in a hamlet outside of Fort Stoddart in the MS Territory. It was from there that he had a military escort to Richmond, VA, where he would stand trial both for treason (a Constitutional violation) and violation of the Neutrality Act of 1794 (a statute). He tried to escape from the escort in SC, where he had loads of supporters (indeed, his daughter married the wealthy SC planter Joseph Alston), but quick-thinking federal troops kept moving him through towns.

Appearing In Richmond and the Legal Case Against Burr

It must have been with a mixture of delight and concern that Burr learned that the judge in his case would be none other than Chief Justice of the United States, John Marshall. Marshall, only 51, had already bulked large in the history of the young country, being both Secretary of State under John Adams and, since 1801, the Chief Justice of the Court. He was loathed by Jefferson, a distant cousin (related through the Randolph family), and that gave Burr, also hated by Jefferson, hope. But Burr had also been a Republican Vice-President, and there was no Federalist so staunch as John Marshall. Marshall had been a personal friend of Alexander Hamilton, whom Burr had ceremoniously offed on the Plains of Weehawken in 1804, an event that led to the rapid crumbling of the Federalist party. Thus, Marshall might be more than piqued at Burr for those things.

Marshall was judge in the case not because it simply was a "big case," though none was bigger, but because he was, under the Judiciary Act of 1802, which had repealed important sections of the Judiciary Act of 1801, thus restoring important sections of the Judiciary Act of 1789, "riding circuit" at this time. The Spring Session of the Virginia Circuit met beginning on May 22 according to the 1789 Act, and so that would be the date that Burr's grand jury examination would begin. But before that date there would be lots of legal tussling, beginning on March 30, centering on the question of whether there was probable cause that Burr's acts met the definition of treason under the US Constitution. That sentence is a mouthful, so let's dissect it.

Treason Under the United States Constitution

The United States Constitution provides the following:

"Section 3. 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," Article III, Sec. 3.

So important was treason to the fledgling nation in 1787 that it is the only crime defined in the US Constitution. So rampant and capricious was the prosecution for treason, however, under English law that our Founding Fathers inserted safeguards in this language designed to forestall hasty or zealous prosecutors from bringing charges of treason against someone. Indeed, it was Ben Franklin himself, at the Constitutional Convention, who suggested probably the most "defendant friendly" wording in the provision--that treason had to be proved by two witnesses testifying to the same "overt act" that constituted "levying war." Thus, it wouldn't be treasonous in America to denounce the government or even to speak of overthrowing the government by force--though those words might run you afoul of some statutory provisions. Treason had to consist of an "overt act" that could be reasonably construed as "levying war" against the US or in giving aid and comfort to enemies.

The Questions Multiply

Well, whenever you have a roomful of lawyers (and there were eight or nine in this trial), you have a bunch of arguments, and their arguments would subject the wording of the above definition to close scrutiny. What, frankly, did "levying war" consist of? Would it be enough just to bop a federal agent over the head or must you have an "assembled crowd" which makes a step against authority of the US? And, must the person who is accused of treason be actually present when the act is done? Or, if not present, what is the degree of connection he had to have with the overt act which itself was considered treasonous? And, if it was the overt act that was treasonous, it had to happen somewhere. Did jurisdiction to consider the treason only exist where that act had occurred? What if there were treasonous acts (or a bunch of acts that added up to ONE treason) in a variety of states? Let's say there was one in PA, one in OH, one in KY, one in TN and one in the LA Territory. Where would jurisdiction be proper to try the case? Could evidence be heard for potential treasonous acts in PA if the court was sitting in VA?

All these, any many other exciting issues, were on the plate of the Chief Justice. Let's turn to the final essay to see how it all worked out.

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