Aaron Burr after the Duel—Treason in Early America

From a lecture series taugt by Professor Allen C. Guelzo, Ph.D.

Not satisfied with going down in history as the man who murdered Alexander Hamilton, Aaron Burr, Vice-President under Thomas Jefferson, went on to commit even more dastardly deeds. Read all about his further exploits.

Bust of Aaron Burr

Escape from New York

After fatally wounding Alexander Hamilton in a duel, Aaron Burr was indicted for murder in August but prudently slipped out of New York before he could be arrested, heading for parts southward. The charges were eventually dropped on technicalities. The duel had taken place on the New Jersey side of the Hudson, but the New Jersey authorities were unwilling to press charges over what they considered a New York affair.

Learn more: George Washington’s Doubts

Samuel Chase, a supreme court justice impeached for political leanings. Burr presided over his impeachment despite being publicly loathed for murdering Hamilton in a duel.

With astonishing brass even for Burr, this lame-duck vice-president showed up for the lame-duck session of the Eighth Congress in Washington and presided over the impeachment trial of Samuel Chase as though nothing remarkable had happened. He had the impudence to give a farewell speech in the Senate on March 2, 1805, and then, in April, Burr set off overland to Pittsburgh, down the Ohio and the Mississippi, to arrive 67 days later on the levee in New Orleans.

For 20 years after the Treaty of Paris, the American Republic had squirmed in anxiety over what might happen along its distant western borders. Control of the Mississippi river valley was vital to the prosperity of the trans-Appalachian West’s economy; yet the United States had next-to-nothing which guaranteed that its boundary on the Mississippi river could be protected from interference by foreign powers—the British, the Spanish, the French. The Louisiana Purchase gave title to the whole region, including New Orleans, but enforcing that title did not become any easier.

Map of the US in 1803

Thomas Jefferson opened up every possible encouragement to western settlement, but even at the best reckoning, there were only 50,000 American settlers in the Northwest Territory and only 9,000 in the southwest outside of New Orleans. Let anyone of the European powers resolve on some scheme for recolonization in North America, there would be little the United States could do to stop it beyond the Appalachians. General James Wilkinson, the senior U.S. officer in the new Louisiana Purchase, admitted that “Our situation at New Orleans is a defenseless one. I most ardently implore that we may not be forced to War against European troops.” Maybe it was a blessing that Napoleon had imbrued Europe in wars on the Continent for so many years.

Learn more: Benjamin Franklin’s Leather Apron

Burr Tries to Start His Own Nation

As early as the summer of 1804, while he was still the sitting vice-president of the United States, Burr began dropping hints to the British minister in Washington, Anthony Merry, about his interest in helping the British stir up trouble for the French in the Caribbean…

If Aaron Burr could not reign in heaven, he would rule in hell, which is more-or-less what he proposed doing in the new Louisiana Purchase. As early as the summer of 1804, while he was still the sitting vice-president of the United States, Burr began dropping hints to the British minister in Washington, Anthony Merry, about his interest in helping the British stir up trouble for the French in the Caribbean by recruiting American mercenaries for clandestine operations—“filibusters” is what they were called.

The talks matured swiftly and quietly, and in short order Burr revealed that he was prepared to “lend his assistance to His Majesty’s Government in any Manner in which they may think fit to employ him,” including the astounding suggestion that he “effect a Separation of the Western Part of the United States from that which lies between the Atlantic and the Mountains.”

Once he had had an opportunity to inspect the Mississippi valley himself, Burr was even more confident, predicting that not only the people of Louisiana but even the U.S. forces stationed there would “enlist with him.” All that the British needed to do was back him with £110,000 and a Royal Navy squadron to secure the mouth of the Mississippi river, and the deed would be done.

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image of Harman Blennerhassett, a co-conspirator with Aaron Burr
Harman Blennerhassett, co-conspirator with Burr and owner of the island which Burr had turned into a base of operations

Merry was not without a certain incredulity at this proposition, and rightly so because Burr was also negotiating simultaneously with the Spanish to deliver exactly the same western lands to them. Still, Burr was doing more than just talk, he had assiduously courted, charmed and dazzled everyone in the West from a hatchet-faced lawyer named Andrew Jackson “one of those prompt, frank, ardent souls whom I love to meet,” Burr wrote to the voluble General Wilkinson.

He recruited according to his lists between 4,000 and 5,000 volunteers and established a base on Blennerhassett Island in the middle of the Ohio River. To all of them, Burr confided that he had been specially commissioned by Thomas Jefferson to lead an expeditionary force to conquer Mexico.

Burr Suffers a Double Cross

Burr had not counted on the double-crossing propensities of General James Wilkinson, whom Burr had promised to make his second-in-command and who himself had been taking bribes on the sly from the Spanish for years. In October 1806, just before Burr was ready to spring his plan, Wilkinson recalculated the odds of Burr’s success, and then wrote to President Jefferson, betraying every detail of Burr’s plan that he knew. Jefferson promptly issued a cease-and-desist proclamation on November 27, and Ohio and Virginia militia staged a rowdy occupation of Blennerhassett Island.

Blennerhasset’s mansion, where Burr headquartered his treasonous army

Burr, however, eluded them. He assembled his expedition at the confluence of the Cumberland and Ohio Rivers at the end of December, and on New Year’s Day, 1807, stopped at New Madrid in the Mississippi to do some desultory recruiting.

For all his swollen promises and puffery, Burr had only 16 boats and 60 men at hand. He did not find out about Wilkinson’s betrayal until January 10, whereupon he scattered his pathetic little force and took to the hills. He didn’t get far. Federal troops arrested him on February 19 as he tried to slip across the border into Spanish West Florida.

Learn more: Alexander Hamilton’s Republic

A High Standard for Prosecuting Treason

It was at this moment that the Founders’ Constitution revealed one of its most unsuspected strengths, and that was its willingness to throw the arms of protection around the liberties even of the people who meant it harm. Article 3, Section 3, which was largely the work of James Wilson defines “treason” as “only levying War” against the United States, “or in adhering to” its “Enemies, giving them Aid and Comfort.” That in itself pulled the punch of anyone eager to convict someone else of treason since treason had to be an act rising to the very high level of war and its concomitants.

In English common law, it was possible to accuse someone of “constructive treason,” which is to say that speech or acts which might lead to treasonous behavior. The Constitution not only excluded a doctrine of “constructive treason,” but also banned what, in English common law, had been a weapon to confiscate the property of convicted traitors, “Attainder of Treason.”

image of edmund Randolph, who served as the lawyer for Aaron Burr
Edmund Randolph, the former governor of Virginia, served as Burr’s lawyer in his trial for treason.

Lastly, Article 3, Section 2 required that the “Trial of all Crimes shall be held in the State where the said Crimes shall have been committed”—which in Burr’s case, would be in Virginia since his base at Blennerhassett Island was technically Virginia soil.

And because this also fell within the boundaries of the U.S. Circuit Court for Virginia, the judges for any trial of Burr for treason would be Cyrus Griffin, the long-ago president of the Confederation Congress, and one of John Adams’ midnight judges, John Marshall, the Chief Justice of the Supreme Court.

Add to this mix Burr’s retention of no one less than Edmund Randolph and Luther Martin as defense counsel, then it was clear that if the United States government wanted Burr’s scalp—and there is no doubt that Thomas Jefferson wanted it very badly, since Burr had become an intolerable embarrassment to a Republican administration—they were going to have a long hill up which to roll their stone.

Learn more: James Madison’s Vices

The Prosecution’s Case Falls Apart

It did not lighten the prosecution’s burdens to discover that the case against Burr was not nearly so transparent as it seemed. The constant crisscrossing of his intentions allowed Burr’s defense to confuse and befog the issues, and though Jefferson provided his prosecuting attorney, George Hay, with blank pardons to induce Burr’s coconspirators to turn state’s evidence, too many of them like General Wilkinson turned out to be suspicious and unreliable characters; and though a number of Burr’s men had been clearly been armed and assembled on Blennerhassett Island, Burr had not actually been there himself, thus undercutting the actual association of Burr with an armed plot.

Burr himself insisted that his party of armed travelers were simply employees whom he was planning to use on new lands he had bought in Louisiana.

Hay tried to invoke the more expansive English common-law definition of “constructive” treason. I mean, hadn’t Burr planned some form of military operation down the Mississippi, and recruited volunteers, and armed and equipped them? But Burr’s counsel insisted that the Constitution’s narrower definition had superseded the definition of treason in English common law, which had no place in a republican courtroom anyway. Vague and contradictory plans, on second-and-third-hand testimony, meant little; and armed men were no novelty on the American frontier. Burr himself insisted that his party of armed travelers were simply employees whom he was planning to use on new lands he had bought in Louisiana.

The Trial Becomes a Referendum on Jefferson

Portrait of John Marshall, who presided over the trial of Aaron Burr
John Marshall, Chief Justice of the Supreme Court and a political opponent of Jefferson, served as a judge o the trial of Burr.

Nor was George Hay able to prevent Burr’s team from turning much of the trial into a political referendum on the administration of Thomas Jefferson. On August 31, after two weeks of trial, John Marshall instructed the grand jury that the treason indictment was groundless, because, first, the government had failed to demonstrate that Burr had commanded “a warlike assemblage, carrying the appearance of force, and in a situation to practice hostility, and then on the technical grounds that Burr had not been present on Blennerhassett Island where the plotters had assembled.

And Marshall did not mind taking a swipe at Jefferson in the process. The Constitution, said Marshall, had never intended “that the hand of malignity may grasp any individual against whom its hate may be directed, or whom it may capriciously seize, charge him with some secret crime, and put him on the proof of its innocence.” The grand jury deliberated for only “a few minutes,” and announced that they found Burr not guilty.

Learn more: Alexander Hamilton’s Papers

The Greatest Villain on Earth

portrait of Aaron Burr
After winning his trial for treason, Burr set up shop as a lawyer in New York City,

Burr thus walked away a free man, and after several months of dodging his creditors—there were civil suits in process against him amounting to over $36,000—boarded a packet-ship under the name H. G. Edwards and sailed for England. He returned from Europe in 1812 and, boldly enough opened up a law office in New York City at 9 Nassau Street.

He made only a scanty living, and people pointed him out on the streets of New York City as “the greatest villain on earth.” Wicked he might indeed be; perhaps the most wicked public member of the Founders’ generation. But even in the depths of his wickedness, and from nearly the pinnacle of constitutional power, nevertheless, Burr had not been able to jar the Constitution out of its accustomed course.

To the contrary, the Constitution he came so close to destroying provided him shelter. If there is any testimony above all others to the wisdom and durability of the republic the Founders built, it resides in the example of the dark recesses of the character and career of Aaron Burr.

Keep reading:
Aaron Burr—The Villain Who KIlled Hamilton
The Star-Spangled Banner: Stitch by Stitch
Alexander Hamilton: His Ideal Republic

From the Lecture series America’s Founding Fathers
Taught by Professor Allen C. Guelzo, Gettysburg College
Map Courtesy of By Made by User:Golbez. (Own work) CC-BY-SA-3.0, via Wikimedia Commons