The Conspiracy And Trial Of Aaron Burr


Burr had failed as a revolutionist, but he remained matchless as a courtroom lawyer. As the proceedings advanced, he regained all his aplomb. This was a world he knew how to deal with. Attack was the best defense. His safety depended on turning the case into a political wrangle between Federalists and Republicans. President Jefferson was personally directing the prosecution from Washington. The leading Federalists were rushing to Burr’s defense. The prosecution’s case must rest on Wilkinson. Burr now felt that the ranting Commanding General, whom a few weeks back he had relied on as his partner in high adventure, would be the easiest man in the world to discredit. Burr knew that the Chief Justice hated Jefferson as hard as he himself did. If he could attack Jefferson through Wilkinson, he could not help winning John Marshall’s sympathy. On the whole, in the crucial game that was about to be played, Burr held a good hand of cards.

The Chief Justice declared he preferred at this point not to commit Burr for treason, but that he felt the evidence sufficient to commit him for high misdemeanor. In explaining his decision, John Marshall pointed out what was to be the nub of the defense: As he interpreted the wording of the cipher letter, admitting that that document should turn out to be genuine, it pointed to an attack against the Spanish dominions instead of to a treasonable enterprise against New Orleans. Therefore, until the government presented more evidence he would hold Colonel Burr for misdemeanor only. Treason had to be proved by two witnesses. As to the proof of treason: “More than five weeks have elapsed since the opinion of the supreme court has declared the necessity of proving the fact if it exists. Why is it not proved?”

Treason would not have been a bailable charge, but misdemeanor was. Bail was set at ten thousand dollars, and later in the afternoon Colonel Burr presented five securities, entered into recognizance for that sum to appear before the circuit court on May 22, and walked out a free man.

Aaron Burr emerged from this first phase of his trial the hero of all the Federalist mansions scattered along the hilltops of Richmond, where detestation of Jefferson was becoming the password to social acceptance. Invitations poured in. The afternoon he dined with John Wickham in celebration of the initial victories of the defense, John Marshall was of the party. Wickham and the Chief Justice were warm and confidential friends. Wickham had been thoughtful enough to warn Marshall that the dinner was for Aaron Burr. Marshall, who loved a good dinner, said he’d come anyway. According to his friends he did sit at the other end of the table, had no direct communication with the accused man, and left early. But this incident did not pass unnoticed by the Republican press, which denounced the Chief Justice’s conduct as “grossly indecent.”

The President’s Dilemma

Jefferson was anxiously studying every letter and newspaper that came in from Richmond. He could see right away that George Hay was no match for Burr’s Federalist lawyers. Besides Randolph and Wickham, the little colonel had engaged two of the brightest of the younger Virginia attorneys, Benjamin Botts and John Baker. The President had heard too that Luther Martin, one of his bitter personal enemies, was on his way from Annapolis to join the defense counsel. The ablest lawyers, it seemed, tended to be Federalists. The President had to make do with what Republicans he could collect. He arranged to have Alexander McRae, a gruff Scot who was lieutenant governor of Virginia, assist in the prosecution, and got off an express to William Wirt, who was trying a case in Williamsburg, engaging him for the government. Young Wirt was generally thought of as a coming man.

Jefferson was exasperated by the difficulties the Chief Justice was putting in the way of the prosecution. From Monticello he wrote William B. Giles, the administration leader in the Senate, commenting testily on “the newborn zeal for the liberties of those whom we would not permit to overthrow the liberties of their country.” Against Burr personally, he added, “I never had one hostile sentiment. I never indeed thought him an honest, frank-dealing man, but considered him as a crooked gun, or other perverted machine, whose aim or shot you could never be sure of.”

Burr, on his side, was taking high ground in his letters to Theodosia: “Was there in Greece or Rome a man of virtue and independence, and supposed to possess great talents, who was not the object of vindictive and unrelenting persecution?”

Burr complained that the panel from which a grand jury was to be selected was composed of twenty Republicans and only four Federalists. A few days later William Wirt, still stoutly maintaining that John Marshall was a fair-minded man, was facing the fact that by insistence on a technicality the court had limited the number of grand jurors to sixteen, “and consequently the chance of the concurrence of 12 in finding a Bill was reduced to a minimum,” as he explained when he got time to write an account of the trial to his foster brother Ninian Edwards in Kentucky. “Burr and his counsel were filled with triumph at the prospect that there would be no Bill found—they displayed their triumph very injudiciously.”