What Is Treason? The Aaron Burr Case
by Carlton Martz
Aaron Burr was involved in a complicated conspiracy in the early years of the republic that resulted in his trial for treason. The trial established important principles about what treason, the only crime described in the Constitution, really meant.
Aaron Burr entered Princeton University at age 13 and graduated with a degree in religion. He then studied law.
During the Revolutionary War, he served as an officer under Benedict Arnold who later defected to the British side. Burr married Theodosia Provost in 1784, but she died twelve years later.
Burr became a successful lawyer and New York politician. He helped build Thomas Jefferson’s Democratic-Republican Party. He was elected to the New York State Assembly and was appointed a U.S. senator by the state legislature.
In the presidential election of 1800, Burr ran with the understanding that he was Jefferson’s vice presidential running mate for the Democratic-Republican Party. But both men ended up with the same number of electoral votes. Burr then plotted to be president, which had to be decided by the House of Representatives.
After many votes in the House, Federalist Party leader Alexander Hamilton broke the tie and voted for Jefferson as president and Burr as vice president. (Later, the Twelfth Amendment directed the electors to vote on separate ballots for president and vice president.)
After the 1800 election, Burr and Jefferson become bitter toward one another. Jefferson dropped Burr as his running mate in the next election.
Burr then ran for governor of New York in April 1804, but lost after Hamilton called him “a dangerous man.” This and Hamilton’s personal insults against Burr were what led to the famous 1804 duel in which Burr shot and killed Hamilton.
Burr was charged with murder but was never tried. He finished his term as vice president in March 1805, and then decided to look westward for his future.
James Wilkinson
James Wilkinson fought alongside Aaron Burr during the Revolutionary War, but never achieved the glory he wanted. After the war he became a merchant who sought his fortune in America’s western territories ceded to the U.S. by the British at the end of the war. Many believed that control of the great rivers like the Ohio and Mississippi was the key to the nation’s economic development and power.
At this time, Spain possessed Florida and everything west of the Mississippi River plus New Orleans. The natural way for the American western frontiersmen to export their grain, furs, and other products was by sending them down the Ohio and Mississippi rivers to New Orleans. However, in 1784 Spain closed the Mississippi to all American commerce.
Wilkinson soon discovered that the American frontiersmen were upset with both Spain for closing the river and their own country for doing nothing about it. Rumors of secession began to spread.
Seeing opportunity, Wilkinson met with Spanish officials and made a deal. He would become a Spanish paid agent and promote the independence of the American western territories in exchange for Spain permitting him to use the Mississippi to take his goods to New Orleans.
In 1800, France’s Napoleon Bonaparte acquired from Spain the Louisiana Territory that extended from New Orleans to the Canadian border. In 1803, Napoleon gave up his ambition for an American empire and sold Louisiana to the U.S.
By 1804, Wilkinson somehow managed to get President Jefferson to appoint him General in Chief of the U.S. Army. Still a secret Spanish agent, Wilkinson dreamed of becoming an empire builder.
In May of that year, just after Burr lost the election for governor of New York, Wilkinson met secretly with him in New York City. The Burr conspiracy may have begun then. The next year, at the end of his term as vice president, Burr persuaded Jefferson to make Wilkinson governor of the Louisiana Territory.
The Burr Conspiracy
Burr began circulating ideas for separating American western lands from the U.S. union while he was vice president. In 1804, he secretly offered to Britain a plan to divide Louisiana from the union in exchange for half a million dollars and aid from the Royal Navy. Britain never accepted.
In 1805, Burr embarked on an expedition from Pittsburgh down the Ohio and Mississippi rivers to New Orleans. He investigated the commercial and strategic military potential of the largely unsettled western territories.
Burr talked with the western frontiersmen about the advantages of seceding from the union. He spoke with Andrew Jackson about conquering Spanish Florida and Mexico. Jackson was favorable to war against the Spanish whom he hated, but opposed secession of emerging western states and territories. Burr also met with Wilkinson.
On Burr’s boat trip down the Ohio, he came across a large island with a mansion owned by Harman Blennerhassett. Burr calculated that Blennerhassett Island would be a perfect place for an army to assemble to take New Orleans and beyond.
Burr’s intentions were never exactly clear. But at different times they appear to have involved separating the western territories from the union, conquering Spanish Mexico, and creating a vast new empire west of the Appalachian Mountains.
Burr had one big problem. His plan required lots of money and he was deeply in debt. Therefore, much of his time was now devoted to fund-raising. He appealed to individual sympathizers, countries, and even relatives.
Wilkinson’s Betrayal of Burr
In October 1806, two messengers delivered to Wilkinson near identical letters in cipher (code) from Burr, revealing his plans. (Today, scholars debate whether Burr wrote these letters himself. Regardless, whoever actually penned them clearly reflected Burr’s plans as indicated by other sources.)
In the cipher letter, Burr declared he now had the money and indicated he had begun operations. He disclosed that the “Eastern detachments” would assemble on the Ohio River (probably Blennerhassett Island) in early November 1806. He claimed that both the British and U.S. navies backed his plan (not true). He said that an army of 500–1000 men in light boats would be at Natchez on the Mississippi, not far from New Orleans, in early December. Wilkinson was to join this force with his U.S. Army command. “The gods invite us to glory and fortune,” he proclaimed. Missing, however, was any specific mention of raising a revolt in New Orleans in order to split the American West from the U.S. union.
Now that Burr’s plan actually seemed to be happening, Wilkinson decided he would be better off betraying Burr, warning Jefferson, and becoming the savior of the nation. From New Orleans, Wilkinson wrote letters to Jefferson about a “deep, dark, and widespread conspiracy” to take the city and then Mexico. At the same time, he changed parts of Burr’s cipher letter, minimizing his own role in the conspiracy. He then sent this letter to Jefferson. Wilkinson also declared Burr a public enemy with a reward for his capture.
Jefferson had been receiving warnings about Burr for quite a while. But when he received the altered cipher letter from Wilkinson on January 18, 1807, he reported to Congress, long before Burr was put on trial, that he was guilty of treason.
Burr Arrested and Indicted for Treason
Meanwhile in August 1806, Burr visited Harmon Blennerhassett on his island and involved him in ordering boats to be built. In early December, about 30 armed men assembled at Blennerhassett Island, but Burr himself was not present. Getting word that state militias from Ohio and Virginia were on the way to arrest them for treasonous activities, the men left the island on boats down the Ohio River on the night of December 10. Burr with additional recruits later joined these men, now amounting to a force of about 100 men.
On February 19, 1807, Burr was arrested in Mississippi Territory and sent under military guard to Richmond, Virginia. This was the location of the circuit court where Chief Justice John Marshall of the U.S. Supreme Court presided. (When the Supreme Court was not in session in Washington, the justices presided as trial judges in different parts of the country at so-called circuit courts.)
Burr appeared before a grand jury at Marshall’s circuit court in May 1807. Wilkinson testified against him. But Burr’s defense lawyers accused Wilkinson of lying under oath and tampering with the cipher letter, which Burr denied writing.
On June 24, the grand jury indicted (charged) Burr, Blennerhassett, and five others with treason. The indictment stated that Burr traitorously intended “to raise and levy war, insurrection and rebellion against the United States” by taking possession of New Orleans. Curiously, the only acts of levying war cited in the indictment focused on the activities at Blennerhassett Island on December 10, 1806, when Burr was not present. Burr’s treason trial took place in Marshall’s Richmond court since Blennerhassett Island was within the state of Virginia.
The Background of Treason Law
The English Parliament enacted its first treason law in 1352 under King Edward III. Treason was making war against the king or aiding and comforting his enemies. Over time, English courts adopted the idea of “constructive treason,” so that it included include speech, writings, and conspiracy that could stir violence against the king’s government.
The framers of the U.S. Constitution in 1787 were cautious to limit their definition of treason. Art. III, Sec. 3, states:
Treason against the United States, should consist only in levying [making] War against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.
Congress was given the power to decide the punishment for treason and set death as the penalty in 1790.
Burr’s Treason Trial
Burr’s treason trial with Justice John Marshall presiding began on August 3, 1807, and went on for about a month. Over 100 witnesses testified, including Wilkinson, the prosecution’s chief witness. But his trustworthiness had been seriously challenged at the grand jury hearing. Burr himself, an accomplished attorney, participated in cross-examining some witnesses.
The government prosecutors were burdened by the fact that most of their witnesses testified about Burr’s plans and ideas, not about his overt acts of levying war against the U.S. The prosecutors tried to convince the jury that to wait for acts of violence to occur was to put the nation in danger. In doing this they adopted the expanded English definition of treason to include conspiracy.
The prosecution was also hobbled by Burr’s indictment. This limited the overt acts to those that happened only on Blennerhassett Island on December 10, 1806. About 30 men assembled with supplies and a few boats. They were armed, but mostly with hunting rifles not military muskets. They marched around, took target practice, and made bullets. When state militias approached, the men escaped down the Ohio.
What about Burr’s force that later joined up with the Blennerhassett men to form an army of about 100? Marshall ruled this could not be admitted as evidence since these acts did not happen on Blennerhassett Island, as required by Burr’s indictment.
Then there was the inconvenient fact that Burr was not on Blennerhassett Island when the treasonous acts supposedly occurred. One prosecutor tried to make that case that Burr was there in spirit:
He is the first mover of the plot. He planned it, he maintained it; he contrived the doing of the overt acts which others have done.
The jury had to decide if the assembly of men at Blennerhassett Island, and Burr their absent leader, had committed overt acts of levying war against the United States amounting to treason. But before the case went to the jury, Marshall had to clarify the meaning of these terms. Marshall had attempted to do this in an earlier case before the Supreme Court, but his legal opinion was confusing and seemed to support both the prosecution and defense in the Burr case.
Marshall’s Clarification of Treason
- Allegiance: A person accused of treason must be a citizen with allegiance to the United States.
- Levying War: This did not always have to be armed conflict. But it did have to involve the appearance of a “competent” organized force strong enough to pose a serious threat to the U.S.
- Overt Act: This had to be a warlike act against the U.S., not just dangerous talk.
- Confession or Witnesses: Confession in open court or the testimony of two witnesses to the same overt act against the U.S. is necessary to connect someone to treason. But such a person did not necessarily have to be present when these treasonous overt acts occurred.
- Conspiracy: This and treason are two different things. Conspiracy by itself is not an overt act of treason.
- First Amendment: This protects one’s right to speak out and write against the government. Thus, Marshall rejected the expanded English “constructive treason.”
On September 1, 1807, the jury declared Burr “not proved to be guilty under this indictment by any evidence submitted to us.” Attempts to try Burr on other charges or for treasonable activities outside Virginia all failed.
Marshall’s circuit court opinion was not a Supreme Court precedent. However, his opinion became the foundation of the law of treason in the United States. Treason prosecutions have been rare in U.S. history. Today, under federal law the penalty for treason can be death or a minimum prison sentence of five years, as well as a minimum $10,000 fine. No one convicted of treason may hold public office.
Burr soon departed to Europe but returned to New York City in 1811 where he became a successful lawyer. Burr died September 14, 1836 at age 81. Even today, scholars are not sure what Burr was really up to. Create a new nation? Conquer Mexico? Overthrow Jefferson? Glory? Some say it was all a scam to raise money to pay off his debts.
This article was originally published in the Winter 2020 issue of Bill of Rights in Action (BRIA), the quarterly curricular magazine of Constitutional Rights Foundation. Click here for a classroom activity on this article, plus writing and discussion questions for use with high school students. You can also subscribe to BRIA for free here.
