For much of the nineteenth century, Blennerhassett Island in the Ohio River was the most famous island in America. Passengers traveling downriver, between the modern states of West Virginia and Ohio, viewed the long, skinny island as one of the highlights of their journey.1 For many it would have brought back memories of school days. Instruction in rhetoric almost always included the careful study and memorization of a florid speech by attorney William Wirt, which opened with a vivid depiction of Blennerhassett Island.2
The island’s claim to fame, or infamy, arose on December 10, 1806. It was here, according to the federal government, that Aaron Burr, the former vice president of the United States, committed treason. It was a plausible charge, except for the inconvenient fact that Aaron Burr was nowhere near Blennerhassett Island on December 10, 1806, and was actually hundreds of miles away.
Everything about the treason trial of Aaron Burr was bizarre. Consider a modern analogy: In 2012, President Barack Obama drops Joe Biden as his running mate, and is reelected with a different vice president. In 2015, the Obama administration indicts Biden for treason (for trying to split the United States in half), and the trial is presided over by Chief Justice John Roberts, a bitter personal enemy (and second cousin, once removed) of President Obama. To spice it up even further, Chief Justice Roberts’s mother-in-law is President Obama’s first fiancée. The prime witness against Biden in the grand jury proceedings is General Colin Powell, who has been a secret agent of the Spanish government for years. And Biden has recently killed former treasury secretary Robert Rubin in a duel, and is under indictment for murder in New York and New Jersey.
Any screenwriter who proposed this plotline would be quickly laughed out of town, as it strains the credibility of even the most ridiculous Hollywood political thriller. Yet this is precisely what transpired during the second term of President Thomas Jefferson. The chief justice was John Marshall, Jefferson’s second cousin, once removed, and the son-in-law of Jefferson’s first fiancée. The witness was General James Wilkinson, the commanding general in the American West and governor of the Louisiana Territory, who for years had been a paid agent of the Spanish government.3 And the former vice president, of course, was Aaron Burr, who had memorably killed former treasury secretary Alexander Hamilton in a duel.
Chief Justice Marshall later described the Burr treason trial as “the most unpleasant case which has ever been brought before a Judge in this or perhaps in any other country.”4 There is good reason to take him at his word. It remains the most extraordinary treason trial in United States history: a former vice president—the highest-ranking person ever charged with treason—ferociously prosecuted for a capital crime by the administration under which he had previously served.
Everything had gone wrong for Aaron Burr, a man who started out with enormous potential and promise. A talented lawyer, Burr was a graduate of Princeton and a distinguished veteran of the Continental Army (where he had served under Benedict Arnold). After one term as a United States senator from New York, Burr was tapped as Thomas Jefferson’s running mate in the 1800 presidential election against incumbent President John Adams.
Under the original Constitution, the members of the Electoral College did not vote separately for president and vice president; they simply voted for two candidates. Whoever came in first became president, and whoever came in second became vice president. In a world without partisan politics, this system might have worked well. But it could lead to disastrous results if there were clearly distinct presidential and vice presidential candidates running together on the same partisan ticket.
In the 1790s, partisan politics emerged rapidly, requiring presidential electors to cast their votes carefully. Ideally, the presidential candidate should receive the most electoral votes; the vice presidential candidate should receive one fewer. In the 1800 election, Federalist electors did this properly, giving Charles Cotesworth Pinckney one fewer vote than John Adams. Republican electors, by contrast, did not, casting all of their votes for both Jefferson and Burr. The resulting tie in the Electoral College meant that the election would be decided by the House of Representatives. The lame-duck House was controlled by Federalists, and rumors began spreading that Federalists might select Burr as president in exchange for various political concessions. Burr initially declared that the clear intent was for Jefferson to be president, but he later muddied the waters by stating that he would accept the presidency if he was selected by the House.5 After thirty-six failed ballots, Jefferson finally secured a House majority on February 17, 1801, just a few weeks before the presidential inauguration. (The Twelfth Amendment, adopted in 1804 in response to this disastrous election, provided for separate balloting for president and vice president.)
Burr’s seeming willingness to seize the presidency permanently soured his relationship with Jefferson, and made it unlikely that he would remain on the ticket in 1804. But Burr himself put the final nail in his political coffin in the summer of 1804 when he challenged Alexander Hamilton to a duel. The two men had been longtime political adversaries in New York, and Burr believed, not unreasonably, that Hamilton had uttered disparaging comments about him. When they met for the “affair of honor” at the dueling field in Weehawken, New Jersey, Burr’s bullet fatally wounded Hamilton, and Burr quickly fled the scene, soon finding himself under indictment for murder in New Jersey and in his home state of New York.* Any hope of future national political office had now permanently vanished.
But Burr was a man of restless, relentless ambition, and he was not inclined to accept defeat. Stymied politically in the east, he came to believe that his best prospects now lay in the American West (which, in those days, meant the area between the Appalachian Mountains and the Mississippi River). Between 1805 and 1806, Burr traveled throughout the region, sizing up locations and meeting with prominent individuals. He was clearly up to something, but what?
Burr’s precise intentions were a mystery to his fellow Americans, and historians have debated the issue endlessly. The most favorable interpretation to Burr suggests that he was assembling a group of men to attack Mexico in the event of a war with Spain. The least favorable interpretation is that Burr intended to use armed force to attack the American city of New Orleans, and then sever the western United States from the east, creating an independent country with himself as the emperor. And there are a host of possibilities in between.
For President Jefferson, the case was clear: Burr had committed treason. In June 1807, a grand jury in Richmond, Virginia, issued an indictment charging that Burr had levied war against the United States at Blennerhassett Island with a group of armed men, and then descended down the Ohio River with the intent to take possession of the American city of New Orleans.6 Yet all sides agreed that Aaron Burr had been hundreds of miles away from Blennerhassett Island when the events charged in the indictment occurred. So why did the federal government charge Burr with committing treason in this remote and unlikely location?
Left to its own devices, the Jefferson administration would have tried the case differently, but several prior judicial decisions had significantly limited its options. Two of Burr’s associates, Erick Bollman and Samuel Swartwout, had been detained on suspicion of treason in the District of Columbia. They filed a petition for a writ of habeas corpus (the legal mechanism by which people who feel they have been unlawfully detained can present their arguments to a court), arguing that their alleged crimes did not amount to treason.
The issue ultimately reached the United States Supreme Court in the case known as Ex parte Bollman, one of only a handful of treason cases ever decided by the Supreme Court. The Court’s opinion, authored by Chief Justice John Marshall, agreed with the Jefferson administration that a purpose to “overturn the government of the United States in New Orleans” was unquestionably treasonable.7 But the Court followed English precedent to hold that a mere conspiracy to levy war is not treason; there must be an actual levying of war.8 The Court noted, however, that if war is actually levied, all persons who played a role in the conspiracy and performed “any part, however minute,” are “to be considered as traitors.”9
This holding would have significant implications for the Burr prosecution. In April 1807, relying on the Bollman decision, Chief Justice Marshall had declined to commit Burr to jail on a treason charge. The government had produced evidence of a conspiracy at most, but no evidence of an actual levying of war. Marshall found that failure perplexing, stating, “The assembling of forces to levy war is a visible transaction and numbers must witness it. It is therefore capable of proof.”10
Marshall’s ruling meant the Jefferson administration had to allege an actual levying of war tied directly to Aaron Burr. And the only place where that could have conceivably happened was Blennerhassett Island. About thirty men had assembled on the island as part of Burr’s scheme. Even though Burr wasn’t physically present, he was the ringleader of the conspiracy and had arranged for the men to be there. Thus, under this new theory, the actions of these men could be legally attributed to Burr; even though he wasn’t physically present on the island, he was “constructively present,” and could be found guilty of treason if the men on Blennerhassett Island had levied war against the United States.
Burr’s subsequent trial was one of the most momentous events of the early nineteenth century. It was held in the Virginia state capitol, a building designed by Thomas Jefferson and modeled on a Roman temple in France. Jefferson took a strong personal interest in the prosecution, sending detailed letters to federal attorneys on nearly every aspect of the case.11 The Jefferson administration spared no expense; total costs for Burr’s treason trial exceeded $100,000, over $4 million in today’s currency.12 Chief Justice John Marshall presided, along with United States District Judge Cyrus Griffin. Until the late nineteenth century, Supreme Court justices were required to “ride circuit,” meaning that they presided over trials in the circuits to which they were assigned. Marshall’s circuit included his hometown of Richmond.
Jury selection began on August 4, 1807, and consumed nearly two weeks, due to the difficulty of finding jurors who had not formed an opinion of Burr’s guilt. The prosecution presented fourteen witnesses, many of whom were ably cross-examined by Burr himself. The defense then moved to stop the trial on the ground that no legally sufficient evidence of treason had been presented.
The attorneys on both sides presented extensive arguments on this question, and on August 31, 1807, Chief Justice Marshall announced his decision, the longest judicial opinion he ever wrote.13 Marshall held that it was not sufficient to show that Burr had arranged for the assemblage of men on the island; at most, that showed a conspiracy to levy war. Rather, the government had to prove an overt act on Burr’s part showing actual levying of war. That act “may be minute, it may not be the actual appearance in arms, and it may be remote from the scene of action . . . but it must be a part, and that part must be performed by the person who is leagued in the conspiracy.”14 Marshall therefore required the prosecution to come forward with evidence of actual acts of levying war that had occurred on Blennerhassett Island and that could be directly tied to Burr. The government had no such evidence, and the case was submitted directly to the jury without any presentation of witnesses for the defense.
The jury foreman (who, curiously, was John Marshall’s brother-in-law) announced the verdict: “We the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty.”15 Burr objected to the form of this verdict, because the phrase “by any evidence submitted to us” was highly irregular, but Marshall directed that it be entered as a “not guilty” verdict. The jury’s peculiar phrasing of the verdict indicated that it had some doubts as to Burr’s actual innocence, but his guilt had not been proven to its satisfaction. In response to Marshall’s ruling and the jury’s verdict, the government dropped the remaining treason charges against six of Burr’s associates.16
President Jefferson was predictably furious about Marshall’s handling of the trial, complaining that Marshall’s ruling had issued a “proclamation of impunity” to every treasonable combination.17 In Baltimore, a mob hung Marshall in effigy for his “strange capers in open court.”18 But most historians have praised Marshall for his balanced handling of a difficult political trial. He was placed in a nearly impossible position, and his rulings were careful, thoughtful, and have stood the test of time. Even more significant, Marshall’s conduct demonstrated the importance of an independent federal judiciary that was not cowed by the executive branch and that proved itself fully capable of protecting the rights of even the most unpopular defendants.
Although Burr had escaped conviction for treason, his life continued to spiral downhill. After spending several years in Europe, during which he tried to persuade foreign governments to support further schemes against Mexico, Burr returned to the United States. The death of his only grandson, followed shortly by the death of his only acknowledged child, a daughter, left him without any legitimate descendants (there seem to have been others that remained unacknowledged, including two children with a woman of color19). Burr resumed his legal practice in New York, where he worked quietly until his death in 1836.
One of the great mysteries of American history is what Burr really intended on his western travels. Most of the evidence suggests that he was up to no good. And he acted guilty—despite his impressive legal talents, he consistently refused to take actions or make statements that could have easily cleared away suspicion. Revelations from foreign archives have confirmed that Burr solicited both the Spanish and British governments in attempts to divide the United States.20 On balance, he was clearly disloyal to his country.
The jurors who acquitted Burr did not have access to all of this evidence, but even if they had, it may not have proven an actual act of treason. The men at Blennerhassett Island might have later been employed to levy war against the United States, but they were doing nothing illegal on the island itself. At most, there was a conspiracy that had yet to ripen into full-fledged treason. That said, the men were well positioned to do significant damage, and it’s possible they might have done so very quickly. Attorney David Stewart, in a careful review of the evidence, concludes that Burr intended to create an uprising in New Orleans with the eventual goal of installing himself as emperor of a new western nation.21
Another possibility is suggested by historian Peter Hoffer, who argues that Burr’s various activities may have amounted to little more than a giant confidence game—a scheme to raise money for himself by telling every potential supporter what he wanted to hear. The inconsistency and mystery of Burr’s motives were thus critical to ensnaring more and more financial backing.22 Burr was not a traitor, but simply a con man working his marks in the American West.
The reality is that we will never know for sure precisely what Burr intended. His inner thoughts were shrouded in obscurity, even to his contemporaries. But the fall of Aaron Burr, although resembling a Hollywood thriller, also has echoes of a Greek tragedy. A man who was once a soaring political star—almost elected president of the United States at the age of forty-five—found himself just a few years later undone by his own ambition, indicted for murder, and tried for treason against his own country. It is a cautionary tale about vanity and hubris, but also a useful reminder that no one—not even a former vice president or a president who prosecutes him—is above the law.