The Conspiracy And Trial Of Aaron Burr

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The trial proper began on August 3. When Chief Justice Marshall appeared on the bench at noon, George Hay for the prosecution was forced shamefacedly to confess that he had not the witnesses on hand he needed to present his case. Again court was adjourned. It was not till the following Monday that enough government witnesses assembled to justify impanelling a jury. A number of jurors were rejected because they admitted having formed an opinion, like a certain Mr. Bucky, that whether treason were proved or not, Colonel Burr ought to be hung.

George Hay’s prosecution never recovered its impetus, even though the people in general agreed with Mr. Bucky. In spite of William Wirt’s flights of oratory, his fanciful description of the beauties of Blennerhassett’s island before Burr arrived like the serpent in Eden, Burr and his lawyers retained the offensive.

President Jefferson could give only half his mind to the Burr trial. Yet the conviction of Burr had become an idea so fixed that it clouded his judgment. At one point he wrote Hay, after reading some particularly intemperate remarks by Luther Martin, that if “Old Brandy Bottle,” as Martin was popularly called, was such a good friend of Burr’s, maybe he should be indicted himself.

The administration was in a dilemma. To make a proper case against Burr they had to inculpate Wilkinson, and yet the President and his two advisers, Secretary of State James Madison and Secretary of the Treasury Albert Gallatin, had decided that the state of affairs in New Orleans demanded that, come what may, they support the General. The prosecution’s case against Burr—though a procession of witnesses from the rank and file of those whom Burr had deceived produced evidence enough to convict him of all sorts of other crimes—depended on John Marshall’s broad definition of treason as the assembling of armed men—the definition advanced by the Chief Justice in the habeas corpus proceedings against Bollman and Swartwout. George Hay made no effort to prove that Aaron Burr was present when the overt acts were committed by his armed forces assembled on Blennerhassett’s island.

But on August 31, John Marshall seemed to shift his ground. Admitting that there were times when the Supreme Court might be called upon to reconsider its judgments, he explained away the phrases in his previous definition of treason which might imply that conspiracy to assemble armed men was sufficient to establish guilt. “The present indictment charges the prisoner with levying war against the United States, and alleges an overt act of levying war. That overt act must be proved, according to the mandates of the constitution and of the act of congress, by two witnesses. It is not proved by a single witness.”

The Chief Justice furthermore ruled that since the overt act had not been proved, “corroborative or confirmatory testimony” was not admissible. This ruling by one scratch of the pen threw out all the testimony as to Burr’s performances on the Mississippi and the Ohio which the prosecution had gone to such pains to collect. As was his wont, the Chief Justice presented his opinion in writing, and at great length.

The court adjourned to give District Attorney Hay time to read it over. Next morning he threw up the case. His swarm of witnesses had been ruled out unheard. He would leave it to the jury.

After twenty-five minutes the jury returned to the hall. The verdict was read by the foreman, this time the muchrespected Colonel Edward Carrington. “We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us.”

Burr immediately objected to the form of the verdict. Luther Martin asked if the jury intended to censure the court for suppressing testimony. Members of the jury, as politely as they could, made it clear that that was exactly what they did intend. The Chief Justice, in his offhand manner, ended the imbroglio by suggesting that the verdict stand as written but that “Not guilty” be entered in the record.

The Case Falls Apart

The threat of the gallows was lifted, but the sun had not come out for Aaron Burr. He was no sooner freed of the indictment for treason than he found himself attached for debt in a civil suit. Somehow he managed to find surety to the amount of $36,000.

Emboldened by the favorable verdict in Burr’s case, Jonathan Dayton emerged from hiding and appeared in court with an affidavit to the effect that he had not been on Blennerhassett’s island in December, 1806. Hay entered a nolle prosequi. And when Harman Blennerhassett was brought into court the next day, his case was treated in the same way.

There was still the “misdemeanor” charge, the considerable misdemeanor of mounting an expedition against Spanish territories. Burr and the rest were admitted to bail on that. And while they waited, Blanny dogged Burr’s footsteps; he kept writing the little colonel begging for an explanation. He and his family were penniless. Colonel Burr must propose some plan for repaying the money he owed him. Whenever he managed to see Burr, that gentleman was surrounded by friends and remarkably inattentive to talk of a financial settlement. Blennerhassett then sought out Alston. All Alston would talk about was how he himself was fifty thousand dollars in the hole. At last Burr granted Blanny a private interview. Burr wanted to know which influential men Blanny could introduce him to in England.