The Heartbreak of Aaron Burr

by H. W. Brands

  Burr similarly succeeds in barring Wilson Cary Nicholas, who crossed swords with Burr when Burr presided over the Senate. Nicholas has loudly proclaimed Burr’s guilt in the present case, and he too is sent home.

  But eventually the grand jury is seated, and Marshall issues its charge: “To you by the constitution and laws of our country is confided the important right of accusing those whose offenses shall have rendered them subject to punishment under the laws of the United States. It is on you that the fundamental principles on which the stability of our political institutions and the safety of institutions most greatly depend.” Justice and the law, alone, must guide the grand jury’s actions. “Juries, gentlemen, as well as judges, should be superior to every temptation which hope, fear, or compassion may suggest; who will allow no influence to balance their love of justice; who will follow no guide but the laws of their country.”

  The grand jury may indict the defendant on any of several charges, Marshall says. But one stands out. “The first on the calendar, as well as the highest known atrocity, is treason against the United States. With a jealousy peculiar to themselves, the American people have withdrawn the subject from the power of their legislature and have declared in their constitution that ‘treason against the United States shall consist only in levying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.’ ”

  The grand jury accepts Marshall’s charge and retires for the day, whereupon Burr steps forward to request that certain evidence gathered by the prosecution be excluded. The authority of the evidence is open to doubt, he says, and the defense has had no chance to examine it. A countermotion by the prosecution to allow the evidence elicits a further objection by the defense, that the prosecution is selectively leaking the evidence to the newspapers. “The press from one end of the continent to the other has been enlisted on their side to excite prejudice against Colonel Burr,” John Wickham indignantly declares for Burr.

  The prosecution’s William Wirt leaps to rebut. “If Aaron Burr be innocent,” he says, “instead of resisting this motion he ought to hail it with triumph and exultation. What is it that we propose to introduce? Not the rumors that are floating through the world, nor the bulk of the multitude, nor the speculations of newspapers, but the evidence of facts. We propose that the whole evidence, exculpatory as well as accusative, shall come before you; instead of inciting, this is the true mode of correcting prejudices. The world, which it is said has been misled and influenced by falsehood, will now hear the truth. Let the truth come out; let us know how much of what we have heard is false, how much of it is true; how much of what we feel is prejudice, how much of it is justified by fact. Whoever before heard of such an apprehension as that which is professed by the other side? Prejudice excited by evidence! Evidence, sir, is the great corrector of prejudice. Why then does Aaron Burr shrink from it?”

  Wirt notes that the defense has complained that the prosecution is driven by partisanship. One would expect such a strategy from Burr and his hirelings, he declares. “They would convert the judicial inquiry into a political question; they would make it a question between Thomas Jefferson and Aaron Burr. The purpose is well understood, sir. But it shall not be served.” The business of the court is quite different. “We have an account to settle not between Aaron Burr and Thomas Jefferson, but between Aaron Burr and the laws of his country.”

  Burr himself opposes Wirt. “The question in the present case,” he says, “is whether there is probable cause of guilt, and whether time ought to be allowed to collect testimony against me. This time ought generally to be limited; but there is no precise standard on the subject, and much is, of course, left to the sound discretion of the court.” Burr hopes the court will note the time already given to the government to prepare its case. “Five months ago a high authority”—Jefferson, though Burr doesn’t name him now—“declared that there was a crime, that I was at the head of it; and it mentioned the very place, too, where the crime was in a state of preparation.” Surely five months is sufficient to gather evidence. Yet the prosecution is asking for more time.

  As to the politics of the case, Burr says, the administration politicized matters from the start. But even if it had not, the defense has every right to challenge its motives. “Surely it is an established principle, sir, that no government is so high as to be beyond the reach of criticism. And it is more particularly laid down that this vigilance is more peculiarly necessary when any government initiates a prosecution; and one reason is on account of the vast disproportion of means which exists between it and the accused. If ever there was a case which justified this vigilance, it is certainly the present one, when the government has displayed such uncommon activity.” Burr points out that many of his friends have been seized by the military—“a practice truly consonant with European despotisms.” These persons have been compelled to testify against him. His papers have been seized. His mails have been intercepted and opened. An order was issued to kill him if he could not be arrested.

  Burr lampoons Jefferson’s assertions regarding the peril the country faces on account of the alleged conspiracy. “Our president is a lawyer, and a great one, too. He certainly ought to know what it is that constitutes a war. Six months ago he proclaimed that there was a civil war. And yet for six months they have been hunting for it, and still cannot find one spot where it existed. There was, to be sure, a most terrible war—in the newspapers, but nowhere else.”

  Amid the reciprocal declamations, the evidence issue centers on a deposition by James Wilkinson. The Louisiana governor was one of the first to alert Jefferson to Burr’s activities in the West, and although he is said to have left St. Louis some time earlier, he has yet to arrive in Richmond. The prosecution wishes to admit his written statement; the defense wants to exclude it.

  Benjamin Botts puts the issue in constitutional and historical perspective. The defense attorney asks the court to consider the definition of treason. “First,” he says, “it must be proved there was an actual war. A war consists wholly in acts, and not in intentions. The acts must in themselves be acts of war; and if they be not intrinsically so, words or intentions cannot make them so. In England, when conspiring the death of the king was treason, the quo animo formed the essence of the offense; but in America, the national convention has confined treason to the act.… An intention to levy war is not evidence that war was levied.… Secondly, the war must not only have been levied, but Colonel Burr must be proved to have committed an overt act of treason in that war. A treasonable intention to cooperate is no evidence of actual cooperation. The acts of others, even if in pursuance of his plan, would be no evidence against him. It might not be necessary that he should be present, perhaps; but he must be, at the time of levying the war, cooperating by acts, or, in the language of the Constitution, be committing overt acts. Thirdly, the overt act by the accused, as an actual war, must not only be proved, but it must be proved to have been committed within this district. Fourthly, the overt act must be proved by two witnesses.”

  John Marshall listens carefully to Botts’s disquisition. As the defense counsel closes, the chief justice affirms that Botts has framed the case correctly.

  Marshall’s assent encourages Burr to make an ambitious request. He asks the court to require President Jefferson to produce certain documents that might assist the defense. The most important such document is a letter from Wilkinson to Jefferson dated October 21, 1806. The president referred to this letter in his special message to Congress. Burr requests as well copies of the reply Jefferson sent to Wilkinson and of the order the president issued to officers of the army and navy near New Orleans.

  Luther Martin explains the reasoning of the defense regarding these documents. It is a general principle of the law, Martin says, that an accused person has the right to defend himself; the documents the defendant has requested are essential to an effective defense. Moreover, the documents in question—most notably the president’s order to the army and navy—will r
eveal the motive of the administration in prosecuting the defendant. “We intend to show that by this particular order his property and person were to be destroyed; yes, by these tyrannical orders the life and property of an innocent man were to be exposed to destruction.” Jefferson has put a heavy thumb on the scales of justice. “The President has undertaken to prejudge this trial by declaring that of his guilt there can be no doubt. He has assumed to himself the knowledge of the Supreme Being himself, and pretended to search the heart of my highly respected friend.… He has let slip the dogs of war, the hell-hounds of destruction, to hunt down my friend. And would this President of the United States, who has raised all of this absurd clamor, pretend to keep back the papers which are wanted for this trial, where life is at stake? It is a sacred principle that in all such cases, the accused has a right to all the evidence which is necessary to his defense. And whoever withholds, willfully, information that would save the life of a person charged with a capital offense is substantially a murderer, and so recorded in the registry of Heaven.”

  William Wirt states his astonishment that Martin is resorting to such ad hominem arguments. “I cannot take my seat, sir,” the associate prosecutor says, “without expressing my deep and sincere sorrow at the policy which the gentlemen in the defense have thought it necessary to adopt.” To whom do they address these ludicrous remarks—“these perpetual philippics”—against the administration? “Do they flatter themselves that this court feel political prejudices which will supply the place of argument and innocence on the part of the prisoner? Their conduct amounts to an insinuation of the sort. But I do not believe it.… Or is it on the bystanders that the gentlemen expect to make a favourable impression? And do they use the court merely as a canal through which they may pour upon the world their undeserved invectives against the government? Do they wish to divide the popular resentment and diminish thereby their own quota? Before the gentlemen arraign the administration, let them clear the skirts of their client. Let them prove his innocence.… I hope that the court, for their own sakes, will compel a decent respect to that government of which they themselves form a branch. On our part, we wish only a fair trial of this case. If the man be innocent, in the name of God let him go. But while we are on this question of his guilt or innocence, let us not suffer our attention and judgment to be diverted and distracted by the introduction of other subjects foreign to the inquiry.”

  Marshall lets the two sides contend at length; only on the fifth day does he deliver his judgment. The president must surrender the documents the defense requires. The president is not above the law, Marshall says. Conceivably the president could contend that providing such evidence would fatally impair his ability to fulfill the duties of his office. But such impairment is unlikely, and in any event responsibility rests with the executive branch to demonstrate it, not with the judicial branch to infer it.

  The members of the prosecution are disappointed at Marshall’s decision; they soon learn that Jefferson is livid. Hay receives a scorching letter from the White House. “Shall we move to commit Luther Martin as particeps criminis with Burr?” Jefferson writes. He threatens to turn his best investigator loose on Martin. “His evidence will pull down this unprincipled and impudent Federalist bulldog, and add another proof that the most clamorous defenders of Burr are all his accomplices.”

  But Jefferson has no answer to Marshall, and he grumblingly turns over the documents Burr has demanded.

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  The proceedings take a dramatic turn when James Wilkinson abruptly appears. The general and governor is the prosecution’s key witness; to him, it claims, Burr revealed his plans for capturing New Orleans with his expeditionary force and turning the Mississippi Valley against the government in Washington. Wilkinson knows so much, the prosecution explains, because Burr wanted him to be part of the conspiracy. They communicated in cipher, which makes the correspondence all the more incriminating. With Wilkinson in Richmond, the prosecution believes its case is made.

  Perhaps Burr does too. Washington Irving has joined the defense team, not yet having shifted his full energies from law to literature. He paints the moment at which the prisoner and his accuser meet in the courtroom: “Burr was seated with his back to the entrance, facing the judges, and conversing with one of his counsel when Wilkinson strutted into the court and took a stand in a parallel line with Burr on his right hand. Here he stood for a moment swelling like a turkey cock, and bracing himself up for the encounter of Burr’s eyes. The latter did not take any notice of him until the judge directed the clerk to swear General Wilkinson; at the mention of the name Burr turned his head, looked him full in the face with one of his piercing regards, swept his eye over his whole person from head to foot, as if to scan its dimensions and then coolly resumed his former position, and went on conversing with his counsel as tranquilly as ever. The whole look was over in an instant, but it was an admirable one. There was no appearance of study or constraint in it; no affectation of disdain or defiance; a slight expression of contempt played over his countenance, such as you would show on regarding any person to whom you were indifferent, but whom you considered mean and contemptible.”

  Wilkinson’s arrival pushes the proceedings forward; shortly the grand jury, concluding there is enough evidence to go to trial, indicts Burr. The defendant, according to the windy indictment drawn up by the prosecution, “not having the fear of God before his eyes, nor weighing the duty of his said allegiance”—to the United States—“but being moved and seduced by the instigation of the devil, wickedly devising and intending the peace and tranquility of the said United States to disturb and to stir, move and excite insurrection, rebellion and war against the said United States … 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 “with a great multitude of persons whose names are at present unknown …

  armed and arrayed in a warlike manner, that is to say, with guns, swords, and dirks and other warlike weapons … most wickedly did ordain, prepare and levy war against the said United States … with the wicked and traitorous intention to descend the said river”—the Ohio—“and the river Mississippi and by force and arms traitorously to take possession of a city commonly called New Orleans.”

  Upon the reading of the indictment, Marshall asks Burr how he pleads. “I acknowledge myself to be the person named in the indictment,” he responds. “I plead not guilty, and put myself upon my country for trial.”

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  To this point in the proceedings Burr has been free on bail, and he spends his hours outside the courtroom with Theo, Aaron and Alston. He exhibits his customary aplomb and reassures them that all will end well. Theo displays the confidence she always feels in her father. Alston, aware of the power of the presidency, quietly harbors doubts. Small Aaron is blissfully ignorant of the meaning of the events.

  Upon the indictment Marshall determines that Burr needs to be confined. Briefly he allows the prisoner to stay under armed guard in the house rented by his attorney Luther Martin. But he then orders Burr transferred to the local prison, where he occupies a cell on the third floor.

  He remains there through the month of July. Marshall has other cases to hear, and the prosecution wants time to perfect its arguments against Burr. The jury phase of Burr’s trial is scheduled to begin in early August.

  Theo and Aaron help him pass the time, although in the confines of his cell there is only so much they can do. She brings news of the outside world; Burr encourages her continued self-improvement. Father and daughter speak of what Aaron will become.

  They try to ignore what may become of Burr. But as the summer heat mounts, as one weary day edges into the next, as they ponder how far he has fallen already, their assurances to each other that everything will come right require greater and greater effort.

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  The trial proper begins at noon on Monday, August 3. Prospective jurors
are summoned and examined. “What opinion have you formed of me?” Burr asks one, Jerman Baker.

  “A very bad one, which I have expressed often when called upon, and often when not,” Baker answers. He is dismissed.

  Edward Carrington is a military veteran who admits to having been swayed against Burr by recent reports in the press. Burr inquires: “Have you, Colonel, any prejudice of a more settled kind and ancient date against me?”

  “None at all,” Carrington replies. He is accepted.

  A farmer named Morrison professes no prejudice against Burr. But he remarks that the defense might fear him even so. “My first name is Hamilton.” He is rejected.

  After an initial display of cooperation, the two sides descend into squabbling over who should be impaneled. They fight over particular individuals, then retreat to higher ground to contest the fundamental principles of trial by jury of one’s peers. Marshall lets the lawyers earn their fees before he steps in. Familiarity with the charges against the prisoner, Marshall says, is no ground for disqualification. But strongly held and expressed opinions can be. “To have made up and delivered the opinion that the prisoner entertained the treasonable designs with which he is charged, and that he retained those designs, and was prosecuting them when the act charged in the indictment is alleged to have been committed, is good cause of challenge.”

  Marshall’s directive pushes the selection process to a conclusion, and the argument phase begins. George Hay opens for the prosecution. He addresses the nature and sequence of acts constituting treason. “Gentlemen, common sense and principles founded on considerations of national safety certainly require that the crime of treason should be completed before the actual commission of hostilities against the government,” he says. “If force must be employed before treason shall be said to be perpetrated, what is the consequence? Why, that the traitor will so take his steps as not to strike a blow till he be in such an attitude as to be able to bid defiance to the government and laugh at your definitions of treason. If he be a man of common understanding, he will not hazard a blow till his arrangements be so complete that the blow shall be fatal. It will, then, be a matter of very little consequence to him what may be the definition of the crime which he has thus committed. What, then, is the point at which a treasonable conspiracy shall be said to have matured into treason? What shall be said to be an overt act of treason in this country? The answer is this, gentlemen of the jury, that an assemblage of men convened for the purpose of effecting by force a treasonable design, which force is intended to be employed before their dispersion, is treasonable, and the persons engaged in it are traitors.” Hay acknowledges that this is not literally what the courts have previously ruled. “But it is substantially the same, and is given in conformity to what I understand to be the spirit of that decision.”