The Trial of Aaron Burr for Treason


By Allen Guelzo, Ph.D.Gettysburg College

Judges for the trial of Aaron Burr for treason were Cyrus Griffin, the long-ago president of the Confederation Congress, and John Marshall, the Chief Justice of the Supreme Court. Article 3, Section 2 required that the “Trial of all Crimes shall be held in the State where the said Crimes shall have been committed”.

An image of the old Beuton Church in Virginia
The trial of Aaron Burr was held in Virginia. (Image: Gift of Mrs. A. Wordsworth Thompson, 1899/Public domain)

When James Wilkinson Betrayed Aaron Burr

Aaron Burr recruited between 4,000 and 5,000 volunteers and established a base on Blennerhassett Island in the middle of the Ohio River. To all of them, Burr confided that he had been specially commissioned by Thomas Jefferson to lead an expeditionary force to conquer Mexico.

Burr had not counted on the double-crossing propensities of General James Wilkinson, whom Burr had promised to make his second-in-command and who himself had been taking bribes on the sly from the Spanish for years. In October 1806, just before Burr was ready to spring his plan, Wilkinson recalculated the odds of Burr’s success and then wrote to President Jefferson, betraying every detail of Burr’s plan that he knew. 

Jefferson promptly issued a cease-and-desist proclamation on November 27, and Ohio and Virginia militia staged a rowdy occupation of Blennerhassett Island. Burr, however, didn’t find out about Wilkinson’s betrayal until January 10, whereupon he scattered his pathetic little force and took to the hills. He didn’t get far. Federal troops arrested him on February 19 as he tried to slip across the border into Spanish West Florida.

This is a transcript from the video series America’s Founding FathersWatch it now, on Wondrium.

Founders Constitution

It was at this moment that the Founders’ Constitution revealed one of its most unsuspected strengths, and that was its willingness to throw the arms of protection around the liberties even of the people who meant it harm.

Article 3, Section 3, which was largely the work of James Wilson, defines “treason” as “only levying War” against the United States, “or in adhering to” its “Enemies, giving them Aid and Comfort.” That in itself pulled the punch of anyone eager to convict someone else of treason since treason had to be an act rising to the very high level of war and its concomitants.

In English common law, it was possible to accuse someone of “constructive treason”, which is to say that speech or acts which might lead to treasonous behavior. The Constitution not only excluded a doctrine of “constructive treason”, but also banned what, in English common law, had been a weapon to confiscate the property of convicted traitors, “Attainder of Treason”.

Location and Judges in the Trial of Aaron Burr

A portrait of John Marshal
John Marshall was one of the judges at the Aaron Burr trial. (Image: Virginia Museum of Fine Arts/Public domain)

Since Aaron Burr’s base at Blennerhassett Island was technically Virginia soil, and because this also fell within the boundaries of the U.S. Circuit Court for Virginia, so the trial should have been held in Virginia.

Burr’s retention of no one less than Edmund Randolph and Luther Martin as defense counsel, and Cyrus Griffin and John Marshal were the judges of Burr’s trial. 

The constant crisscrossing of his intentions allowed Burr’s defense to confuse and befog the issues, and though Jefferson provided his prosecuting attorney, George Hay, with blank pardons to induce Burr’s co-conspirators to turn state’s evidence, too many of them like General Wilkinson turned out to be suspicious and unreliable characters; and though a number of Burr’s men had been armed and assembled on Blennerhassett Island, Burr had not actually been there himself, thus undercutting the actual association of Burr with an armed plot.

Learn more about John Jay’s eponymous treaty with Great Britain.

The Outcome of the Trial

Nor was George Hay able to prevent Burr’s team from turning much of the trial into a political referendum on the administration of Thomas Jefferson. On August 31, after two weeks of trial, John Marshall instructed the grand jury that the treason indictment was groundless because, first, the government had failed to demonstrate that Burr had commanded “a warlike assemblage, carrying the appearance of force, and in a situation to practice hostility”, and then on the technical grounds that Burr had not been present on Blennerhassett Island where the plotters had assembled. 

A portrait of Thomas Jefferson while in London.
Aaron Burr’s team turned the trial into a political referendum on the Thomas Jefferson administration. (Image: National Portrait Gallery/Public domain)

And Marshall did not mind taking a swipe at Jefferson in the process. The Constitution, said Marshall, had never intended “that the hand of malignity may grasp any individual against whom its hate may be directed, or whom it may capriciously seize, charge him with some secret crime, and put him on the proof of its innocence.” The grand jury deliberated for only “a few minutes,” and announced that they found Burr not guilty.

Learn more about Aaron Burr’s duel with Alexander Hamilton.

The Greatest Villain on Earth

Burr thus walked away a free man, and after several months of dodging his creditors—there were civil suits in the process against him amounting to over $36,000—boarded a packet-ship under the name H. G. Edwards and sailed for England. He returned from Europe in 1812 and, boldly enough, opened up a law office in New York City at 9 Nassau Street. 

He made only a scanty living, and people pointed him out on the streets of New York City as “the greatest villain on earth.” But even in the depths of his wickedness and from nearly the pinnacle of constitutional power, Burr had not been able to jar the Constitution out of its accustomed course.

To the contrary, the Constitution he came so close to destroying provided him shelter. If there is any testimony above all others to the wisdom and durability of the republic the Founders built, it resides in the example of the dark recess of the character and career of Aaron Burr.

Common Questions about the Trial of Aaron Burr for Treason

Q: Why was Aaron Burr on trial?  

Aaron Burr had set up a base on Blennerhassett Island. He also hired about 5,000 volunteers and told them he was on a mission from President Jefferson.Burr was arrested after President Jefferson found out. Treason was the reason for the trial of Aaron Burr.

Q: Why was Aaron Burr’s trial held in Virginia? 

According to the Constitution, the trial of any crime must be held in the same state where the crime took place. Since Aaron Burr’s base was located on the island of Blennerhassett in the middle of Ohio River in Virginia soil, the trial of Aaron Burr had to be held in Virginia.

Q: Who were Aaron Burrs judges and defense attorneys? 

Cyrus Griffin and John Marshall were the judges in the trial of Aaron Burr.

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