Treason!

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The government relied on George Hay, Virginia’s U.S. attorney, as lead prosecutor, assisted by Virginia’s lieutenant governor, Alexander McRae. Mostly outgunned, the prosecutors fought on close to even terms only when its youngest lawyer, William Wirt, rose to address the court. With a flair for metaphor and an actor’s sense of timing, the large, sandy-haired Wirt was said to wield his snuffbox as an oratorical weapon.

Even though the assembled lawyers represented some of the finest legal minds in the nation, they couldn’t hold a candle to the defendant and the presiding judge, John Marshall, who would serve as the nation’s greatest chief justice of the Supreme Court, presiding for the first three and a half decades of the 19th century. Marshall entirely eclipsed Cyrus Griffin, the Richmond circuit judge who presided alongside him.

From the pretrial stages through the trial proceedings, Burr attacked the government on matters large and small. The defense accused the prosecution of misrepresentation, foot-dragging, political posturing, and pandering to public opinion. Burr demanded access to President Jefferson’s correspondence with General Wilkinson. He insisted that Marshall throw Wilkinson in jail for contempt of court. Neither logic nor consistency hampered the energetic defense. They argued that a key witness could not accept a presidential pardon because the witness had committed no crimes, then objected that he could not testify without incriminating himself.

Hay complained to Jefferson, who directly managed the prosecutors throughout the case, that Burr “takes every advantage, denies every position advanced in the prosecution, acquiesces in no decision . . . and while he boldly asserts his innocence, adopts every measure within his power to bar the door to an inquiry.”

Ironically, both Burr and his chief accuser, General Wilkinson, withheld their correspondence with each other, protesting that no man of honor could reveal communications intended to be confidential. In that more innocent time, neither the prosecution nor Chief Justice Marshall attempted to compel disclosure of those letters, which have never seen the light of day.

Three Proceedings

The prosecution and defense summoned more than 100 witnesses who overran Richmond, a city of only 5,000. Also flocking to the city were newspaper writers, sensation seekers, and many of Burr’s legion of creditors. America’s 200 newspapers splashed the courtroom drama across their pages, reprinting transcripts from the Richmond newspapers. Future novelist Washington Irving, drawn to the spectacle, complained of “red hot strolls in the middle of the day,” with the mercury approaching 100 degrees, and wilting under the “perspiring horrors” of the town’s social scene.

Burr’s case proceeded in three separate stages. Goaded by President Jefferson, the prosecutors began with treason charges but quickly snarled themselves in their own strategizing. The men who wrote the Constitution in 1787 feared the misuse of treason prosecutions, which British kings often deployed to cripple their opponents. Accordingly, the Constitution defined treason narrowly as either “levying war” against the United States or giving “aid and comfort” to the nation’s enemies. In 1807 the United States had no official enemies to aid and comfort, so Burr could face charges only of levying war against his own country. The Constitution includes another important limitation on treason prosecutions: a conviction must be based upon a confession or the testimony of two witnesses to an “overt act” of treason.

In developing their case against Burr, the prosecutors worked carefully to avoid western courtrooms. Earlier attempts to prosecute the former vice president in Kentucky and Mississippi had foundered when western grand jurors refused to charge him with any crimes. They agreed with Burr that the national government abused westerners and that Spanish lands should be seized as soon as possible.

The prosecutors therefore resolved to press the treason case in front of more sympathetic Richmond jurors, who had strong political loyalties to President Jefferson. To keep the case in Virginia, the indictment charged that Burr’s treason had occurred in the state. Fortunately for the prosecutors, Burr’s expedition had included an early December stop at Blennerhassett Island in the Ohio River, which was then in Virginia (it is now in West Virginia). Less fortunately for the prosecutors, he had not been part of the company at that point. He joined the expedition two weeks later, near the confluence of the Ohio and Cumberland rivers.

Awash in cascades of overblown oratory—Luther Martin delivered a 14-hour, two-day speech—the prosecution foundered on the simple fact that Burr had been absent when his adventurers assembled in Virginia. The government could never prove he had committed “overt acts” of treason in that state.

The treason phase of the case nevertheless produced two extraordinary moments. On the witness stand, William Eaton recounted that the former vice president had proposed “revolutionizing the territory west of the Allegheny; establishing an independent empire there; New Orleans to be the capital; and he himself to be the chief.” Though Eaton described only conversation, not an overt act of treason, his description of Burr’s plans was electrifying.