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Former U.S. vice president Aaron Burr is acquitted of plotting to annex parts of Louisiana and Spanish territory in Mexico to be used toward the establishment of an independent republic. He was acquitted on the grounds that, though he had conspired against the United States, he was not guilty of treason because he had not engaged in an “overt act,” a requirement of the law governing treason. Nevertheless, public opinion condemned him as a traitor, and he fled to Europe.
READ MORE: Aaron Burr's Notorious Treason Case
Aaron Burr, born into a prestigious New Jersey family in 1756, graduated from the College of New Jersey (later Princeton) at the age of 17. He joined the Continental Army in 1775 and distinguished himself during the Patriot attack on Quebec. A masterful politician, he was elected to the New York State Assembly in 1783 and later served as state attorney. In 1790, he was elected to the U.S. Senate. In 1796, Burr ran for the vice presidency on Thomas Jefferson’s Democratic-Republican ticket (the forerunner of the Democratic Party), but the Federalist John Adams won the presidency. Burr left the Senate and returned to the New York Assembly.
In 1800, Jefferson again chose Burr as his running mate. Under the electoral procedure then prevailing, president and vice president were not voted for distinctly; the candidate who received the most votes was elected president, and the second in line, vice president. Jefferson and Burr each won 73 votes, and the election was sent to the House of Representatives. What at first seemed but an electoral technicality–handing Jefferson victory over his running mate–developed into a major constitutional crisis when Federalists in the lame-duck Congress threw their support behind Burr. After a remarkable 35 tie votes, a small group of Federalists changed sides and voted in Jefferson’s favor.
READ MORE: What Was Alexander Hamilton's Role in Aaron Burr's Contentious Presidential Defeat?
Burr became vice president, but Jefferson grew apart from him, and he did not support Burr’s renomination to a second term in 1804. That year, a faction of New York Federalists, who had found their fortunes drastically diminished after the ascendance of Jefferson, sought to enlist the disgruntled Burr into their party and elect him governor. Burr’s old political antagonist Alexander Hamilton campaigned against him with great fervor, and he lost the Federalist nomination and then, running as an independent for governor, the election. In the campaign, Burr’s character was savagely attacked by Hamilton and others, and after the election he resolved to restore his reputation by challenging Hamilton to a duel, or an “affair of honor,” as they were known.
Affairs of honor were commonplace in America at the time, and the complex rules governing them usually led to a resolution before any actual firing of weapons. In fact, the outspoken Hamilton had been involved in several affairs of honor in his life, and he had resolved most of them peaceably. No such recourse was found with Burr, however, and on July 11, 1804, the enemies met at 7 a.m. at the dueling grounds near Weehawken, New Jersey.
There are conflicting accounts of what happened next. According to Hamilton’s “second”—his assistant and witness in the duel—Hamilton decided the duel was morally wrong and deliberately fired into the air. Burr’s second claimed that Hamilton fired at Burr and missed. What happened next is agreed upon: Burr shot Hamilton in the stomach, and the bullet lodged next to his spine. Hamilton was taken back to New York, and he died the next afternoon.
Few affairs of honor actually resulted in deaths, and the nation was outraged by the killing of a man as eminent as Alexander Hamilton. Charged with murder in New York and New Jersey, Burr, still vice president, returned to Washington, D.C., where he finished his term immune from prosecution.
READ MORE: Burr's Political Legacy Died in the Duel with Hamilton
In 1805, Burr, thoroughly discredited, concocted a plot with James Wilkinson, commander-in-chief of the U.S. Army, to seize the Louisiana Territory and establish an independent empire, which Burr, presumably, would lead. He contacted the British government and unsuccessfully pleaded for assistance in the scheme. Later, when border trouble with Spanish Mexico heated up, Burr and Wilkinson conspired to seize territory in Spanish America for the same purpose.
In the fall of 1806, Burr led a group of well-armed colonists toward New Orleans, prompting an immediate U.S. investigation. General Wilkinson, in an effort to save himself, turned against Burr and sent dispatches to Washington accusing Burr of treason. In February 1807, Burr was arrested in Louisiana for treason and sent to Virginia to be tried in a U.S. court. On September 1, he was acquitted on a technicality. Nevertheless, the public condemned him as a traitor, and he went into exile to Europe. He later returned to private life in New York, the murder charges against him forgotten. He died in 1836.
Aaron Burr acquitted of treason - HISTORY
After Burr's disgrace, he became involved in a scheme to cede western lands to Great Britain. Word of Burr's western activities reached President Jefferson, and he ordered treason charges be brought against Burr. Chief Justice Marshall, who also served as a circuit judge (something Supreme Court justices did for the first 100 year of the Republic's existence), became the presiding judge in the treason trial. Marshall, from the beginning of the trial, made it clear that treason could only be what Article III, Section 3 of the Constitution stated: Treason against the United States shall consist only in levying war against them, or in adhering to their economies, 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." In the course of the proceedings, the lawyers for Burr requested papers in the hands of President Jefferson. Marshall demanded that they be turned over, stating that, unless they endangered national security, they must be turned over. Burr was acquitted of the charges of treason.
After Aaron Burr the Vice President of the United States killed Alexander Hamilton in a duel he was indicted for murder and found guilty by a coroner's jury. Burr escaped to Philadelphia was he entered into negotiations with the British to break off the Louisiana Territory from the United States. Burr then involved General Wilkinson the commander of the American military in the plot. Burr next traveled west and tried to gain support for the plan. Word slowly spread eastward about Burrs activities. Initially Jefferson seemingly as unconcerned and did nothing. Soon however, word of Burrs actions had become too widespread for Jefferson to ignore. He finally ordered the arrest of Burr as well as all others who seemed to be involved with Burr. Burr was arrested.
Jefferson insisted that Burr be prosecuted for treason. The presiding judge was Justice Marshall. He at first dismissed the charge of treason but kept the charge of misdemeanor. The prosecution insisted in prosecuting Burr for treason. The trial went on for five months. Each day hundreds of Burr supporters accompanied him to the courthouse. The defense argued that under US law in order to be guilty of treason there had to be two be two actually witnesses to the act of treason and thus Burr could not be found guilty. Marshall agreed with the argument thus demolishing the case of high treason against Burr. Burr was also tried for misdemeanor treason where he was also found not guilty. The government would not give up and soon Burr was indicted for attempted to organize an army against a foreign nation-Spain. Burr fled before he could be tried again and lived many years in Europe until returning to the United States towards the end of his life.
A brief history of treason in the United States
"What makes treason here?" asks Ferdinand in Love's Labour's Lost. Unless you have been living under a rock in Outer Mongolia, you might be asking yourself the same question. On Monday, President Trump accused his critics of treason. Many of them have responded in kind, including Bill Weld, an ostensible challenger to the Republican presidential nomination. Both men are participating in a rhetorical tradition that is as old as the American republic.
The history of actual treason, in the sense of federal criminal prosecutions for the concept defined in the Constitution and adopted almost immediately as a federal offense, is remarkably short. Since the ratification of the Constitution in 1789, there have been only 40 federal treason cases, and far fewer convictions. (John Adams secured the passage of the Alien and Sedition Acts in part because the constitutional definition of treason was too narrow.) Even the most famous "traitors" in American history were not technically guilty of treason. Benedict Arnold might plausibly have argued that it was those on the side he betrayed who were guilty of treason Julius and Ethel Rosenberg were actually convicted of conspiracy to engage in espionage.
Otherwise the record is remarkably sparse. In 1794 Philip Vigol and John Mitchell were convicted of treason for their part in the Whiskey Rebellion and sentenced to death. Both were pardoned by President George Washington. Six years later, John Fries, the leader of the eponymous rebellion, was convicted of the same offense he also received a pardon, from John Adams. Aaron Burr was rather famously acquitted in 1807. In April of 1862, William Bruce Mumford was found guilty of treason after removing an American flag planted by Union Marines atop a mint in New Orleans. Mumford was hanged. During this period, the states also occasionally secured convictions for treason. John Brown was executed in 1859 for crimes against the Commonwealth of Virginia, not the United States. Joseph Smith was charged with treason by the governments of both Missouri and Illinois he was killed by a mob in 1844.
In the 20th century, not a single person was put to death for the crime defined as "War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort." Walter Allen was convicted of treason in 1922 for his part in the Battle of Blair Mountain, the climax of the West Virginia coal wars. He was given a sentence of 10 years and fined, but would later disappear while out on bail pending an appeal before the Supreme Court. Two decades later several German Americans were convicted for assisting a German sabouteur Martin James Monti, an Air Force pilot, defected to the S.S. in 1944 and was subsequently sentenced to 25 years before receiving parole in 1960. Tokyo Rose was convicted in 1949, as was Axis Sally the former was pardoned by Gerald Ford, the latter served 12 years. Tomoya Kawakita was sentenced to death in 1952 for abusing American POWs in Japan during the war but would be deported by the Kennedy administration. The Nazi propagandists Herbert John Burgman and Robert Henry Best both died in the same Springfield, Missouri, prison. In 1990, the death penalty for treason was formally abolished. In 2015, Adam Yahiye Gadahn, the Oregon-born al Qaeda hype man, was killed by a drone in Pakistan.
This more or less exhausts the legal history of treason. Its rhetorical vein is much richer, and there is good reason to think it will never be exhausted. Washington and Alexander Hamilton repeatedly accused their critics of treason. Thomas Jefferson insisted in 1791 that anyone who had business with the newly established Bank of the United States was guilty of treason and should "be adjudged guilty of high treason and suffer death accordingly." This did not happen, and after 1803 such accusations became infrequent. After the Civil War there were frequent calls for the leaders of the Confederacy to be charged with treason, but the precedent established by Grant's blanket amnesty at Appomattox was honored at subsequent surrenders, and enshrined in law by Andrew Johnson in 1869.
The modern rhetorical history of treason really begins in the middle of the 20th century. It is here that we see a revival of treason as a kind of catch-all for one's partisan opponents, which is how it had been deployed in the struggles between Federalists and Republicans in the early history of the republic. In 1954, Joseph McCarthy accused the entire Democratic party of "20 years of treason." He was met with raucous applause by a crowd of 6,200 supporters. By the time that Ann Coulter (a future biographer of the Wisconsin senator) published her eponymous bestseller, Treason: Liberal Treachery from the Cold War to the War on Terrorism, in 2003, treason had already become the watchword of George W. Bush's opponents on the fringes of the left.
With the inauguration of Barack Obama all bets were off — or rather, they were all in, at any odds, on the action that he had committed treason. When Obama bowed to the emperor of Japan, it was treason. In 2014 Ted Cruz bungled Cicero in an attempt to accuse Obama of being "openly desirous to [sic] destroy the Constitution and this Republic," which is treason without the word. The same year, a GOP candidate in Florida called for Obama's execution for treason. Nor was Obama himself the only member of his administration with whom the word would become synonymous among Republicans. Hillary Clinton was repeatedly accused of treason both during and long after her tenure as secretary of state. One New Hampshire lawmaker (and sometime adviser to our current president) even suggested that she should be executed by firing squad. In 2011, George Duff, who maintained that Obama was guilty of treason against the United States despite not believing that the president was a citizen of this country, was convicted in a terrorist plot to seize a courthouse in Tennessee.
Republicans were not alone in this activity. By the end of the administration it had become common for the president's supporters to accuse GOP senators who disagreed with, for example, the administration's Iranian policy of brushing up against treason. There were even meta-debates about whether wishing for Obama's failure in fact constituted treason. (Around the same time there was also a great deal of talk among liberals about the necessity of making the impeachment process much more difficult.) By the end of Obama's second term even Republican senators' refusal to push forward Merrick Garland's nomination to the Supreme Court was "tantamount to treason."
But all of this pales in comparison with the Trump era, during which I doubt a single week has gone by without a discussion of treason either by or from Trump and his supporters appearing in a major media outlet. In the halcyon days of June 2016, it was still possible for The Washington Post to ask in a headline "Is Donald Trump suggesting that Barack Obama committed treason?" I think it is fair to assume that the columnist's query has since been answered — "answered" in the double sense that it is both clear beyond any doubt that Trump has indeed accused Obama, Clinton, and numerous other opponents of treason and obvious that his own critics are just as willing to level the same charge against him for virtually everything, including making jokes during press conferences.
This has continued well after Trump's inauguration and kept pace ever since. By 2017 some observers were detecting a whiff of treason in Washington for others the "smell of treason in the air" was general, diffuse, all-pervading. It was asked whether there is a proper emoji for treason. It was even suggested by a flag-throwing protestor that in some kind of bizarre ontological sense that "Trump is treason." A non-exhaustive list of persons other than Trump himself who accused of treason before, during, or after the special counsel's Russia investigation includes Michael Flynn, Donald Trump, Jr. (including by his father's former vice-presidential rival Tim Kaine among others), and Jared Kushner.
What explains the popularity of this unusually precise legal term as a partisan epithet? The fact that it places one's enemies outside the bounds of whatever is supposed to constitute normal American political discourse. The terms of the conflict change. The quarrel is no longer a prudential disagreement about the best means of securing the common good, but a noble struggle to extirpate an alien element from the body politic. A traitor cannot argue for or explain away his actions he can have no recourse to questions about his motivations. It is not difficult to see why the tool would be wielded frequently and enthusiastically by both of our major political parties.
A more important question is whether these accusations of treason are dangerous. In one sense the answer, I think, is obviously no. Any word whose currency has been so thoroughly debased is all but meaningless. It might be argued that a would-be contest of ideas — you know, the whole democracy thing — between two factions who each insist that the other has forfeited its right to take part at all is not one that is likely to inspire confidence or good faith, much less safeguard the common good. But this, I think, would mean confusing a symptom for a cause.
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Aaron Burr’s trial and the Constitution’s treason clause
It was on this day in 1807 that former Vice President Aaron Burr was acquitted of treason charges. The trial was truly a &ldquoTrial of the Century&rdquo in its time and one of the first tests of the Constitution&rsquos Treason Clause.
The clause reads as follows in Article III, Section 3, of the Constitution:
&ldquoTreason against the United States, shall consist only in levying 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. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.&rdquo
The Treason Clause was carefully worded to limit the charge to the most serious of crimes. Part of this was because of the application of treason charges, in a broader sense, in Great Britain.
The clause, as it was developed by James Wilson at the 1787 convention in Philadelphia, borrowed part of its wording from the English Statute of Treason, and it limited the ability of Congress to define treason. It also put a high burden of proof in place by requiring &ldquothe testimony of two witnesses to the same overt act.&rdquo
Since the Constitution went into effect in 1789, treason charges have been brought fewer than 30 times. And Burr's landmark treason trial was one of the earliest, featuring some of the same people who were at the Constitutional Convention.
Working on Burr&rsquos treason defense team in 1807 were Edmund Randolph and Luther Martin (as the lead attorney), both former constitutional delegates. President Thomas Jefferson directed the prosecution from the White House, with George Hay, and future attorney general William Wirt assisting Jefferson.
How Burr came to be arrested in Alabama in 1807 was a long story in itself, but the brief version is that Burr was rejected by his own party, the Democratic-Republicans, for opposing Jefferson in the 1800 presidential election runoff in the House, and then shunned by the Federalists and others for killing Alexander Hamilton in a duel.
Burr moved west to seek better fortunes, which included an independent military adventure to seize lands belonging to Spain in Louisiana and Mexico (specifically, Texas), with the possible incentive offered to the western states joining in the &ldquoadventure.&rdquo His activities, to a lesser extent, had been public knowledge since 1805.
However, Burr&rsquos longtime friend, General James Wilkinson, decided to abandon the adventure. Wilkinson sent a message to federal authorities and President Jefferson that Burr intended to entice the western states to leave the Union and join with him as he colonized new lands &ndash with the support of England. Jefferson then alerted Congress about Burr&rsquos plan, and he ordered his arrest.
&ldquoJefferson himself never doubted that Burr was a traitor. Indeed, on January 22, 1807, he had pronounced Burr guilty of treason to Congress and the entire nation&mdashwithout a grand jury indictment,&rdquo said Kent Newmyer, in his recent book, &ldquoThe Treason Trial of Aaron Burr: Law, Politics and the Character Wars of the New Nation.&rdquo
&ldquoIn Jefferson&rsquos morally dichotomous calculus, Burr was a danger to the republic in Jefferson&rsquos personalized view of the presidency, it was his responsibility to eliminate the danger, even if it meant breaking the law. Burr brought out the worst in Jefferson, and Jefferson brought out the worst in Burr,&rdquo said Newmyer.
Chief Justice John Marshall, Jefferson&rsquos long-time political foe (and also his distant cousin), would preside at Burr&rsquos treason trial since he was also the federal judge for the U.S. Circuit Court for Virginia.
At the trial, Marshall made the unusual move of issuing a subpoena to President Jefferson to deliver documents that Burr had requested to prepare his defense. Jefferson only supplied parts of the letters to the court and never acknowledged the subpoena. More damaging was testimony that showed that Burr was 100 miles away from a scene on Blennerhassett's Island on the Ohio River, the one location where the government claimed Burr was planning an overt act of treason.
Marshall told the jury that it had to confine its analysis to testimony that an act of war against the United States had been conducted on Blennerhassett's Island. Marshall and the Supreme Court had narrowed that definition in an earlier case related to Burr called Ex parte Bollman.
&ldquoNo testimony relative to the conduct or declarations of the prisoner elsewhere, and subsequent to the transaction on Blennerhassett's Island, can be admitted because such testimony, being in its nature merely corroborative and incompetent to prove the overt act in itself, is irrelevant until there be proof of the overt act by two witnesses,&rdquo Marshall said. &ldquoThis opinion does not comprehend the proof by two witnesses that the meeting on Blennerhassett's Island was procured by the prisoner.&rdquo
The jury quickly reached a verdict.
"We of 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."
Jefferson reportedly wanted the House to bring an impeachment charge against Marshall after the Burr trial. But he had failed in a similar attempt in 1805 when the Senate tried another Supreme Court justice, Samuel Chase after the House brought charges at Jefferson&rsquos urging.
Marshall testified at Chase&rsquos trial, which saw an acquittal for Chase in proceedings conducted by the Vice President at the time: Aaron Burr.
Scott Bomboy is the editor in chief of the National Constitution Center.
Definition of an Overt Act Debated
Burr's defense counsel countered Wirt's impressive oratory by keeping the focus of attention on the prosecution's strained interpretation on what constituted an "overt act." After all, the only act of the revolt remotely "overt" had been the preparations at Blennerhassett's island during which Burr had not been present. Therefore, Botts retorted:
Acts on the island were not acts of war no war could be found in Mississippi or Kentucky. There was no bloody battle. There was no bloody war. The energy of … [the] government prevented that tragical consequence.
On August 31, Marshall made a lengthy ruling on the arguments presented by both sides, later turning the tide in favor of Burr. Marshall held that if the prosecution had proven with two witnesses that Burr had "procured" or caused the men and material to assemble on the island to launch a revolt, then the necessary overt act could be established. The prosecution had not done this, however. All they had presented at trial was testimony that would "confirm" or "corroborate" such eyewitnesses, but not any eyewitnesses themselves. Therefore, the prosecution's evidence was inadmissible and the jury had to ignore it.
Faced with Marshall's ruling, the jury had no choice. On September 1, the jury acquitted Burr when it gave its somewhat left-handed verdict: "We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us."
Although he was acquitted, the press and public still considered Burr a traitor, and his political career was ruined. Burr went to Europe for several years, staying one step ahead of money lenders who financed his lifestyle, and finally returned to the United States in 1812. He lived out the rest of his life in obscurity, dying a broken man in 1836.
— Stephen G. Christianson
Aaron Burr — His Death Bed
By William E. Barton Collection of Lincolniana. Special Collections Research Center, University of Chicago Library. Digital image from American Memory, Library of Congress. (http://www.learnnc.org/lp/multimedia/4833) [Public domain], via Wikimedia Commons January 18, 1868 There has been an impression that Aaron Burr refused to converse upon the subject of religion during his last illness. But this is an error. The writer has received from the daughter of the late venerable Doctor Van Pelt, the following account of Burr’s death, related by her father, who visited him when dying:—Colonel Burr died at the present Port Richmond Hotel, Staten Mend, where Dr. Van Pelt frequently visited him during his protracted illness. The time spent with him was chiefly employed in religious conversation, concluding with prayer. Asked as to his views of the Holy Scriptures, Colonel Burr replied — “They were the most perfect system of truth the world had ever seen.”Two hours before his death, Dr. Van Pelt informed him that he could not survive much longer, when he replied — “I am aware of it.” Dr. Van Pelt thus describes his last moments: “With his usual cordial concurrence and manifest desire, we kneeled in prayer before the throne of Heavenly Grace, imploring God’s mercy and blessing. He turned in his bed and put himself in an humble, devotional posture, and seemed deeply engaged in the religious service thanking me, as usual, for the prayer made for him. Calm and composed, I recommended him to the mercy of God and to the Word of His Grace, with a last farewell. At about two o’clock, P. M., without a groan or struggle, he breathed his last. His death was easy and gentle as a taper in its socket, or a summer’s wave that dies upon the shore. Thus died Colonel Aaron Burr.His last years were spent in comparative obscurity a few old friends, never deserting him, followed his body to its final resting place, in the cemetery at Princeton, N. J., where they deposited him alongside, or at the foot, of his reverend father’s remains. For years not a stone marked the silent spot but a plain white marble monument has been placed there, by the same kind hands who ministered to his wants when in retirement, sick and dying.
What a strange history was Aaron Burr’s! At one time carried along on the wave of popular favor, the chief magistracy of the great republic seemed almost within his very grasp, but not securing it, he became the second officer of the Government, the Vice President of the United States. How rapid and lofty his rise, and his fall how sudden and entire! After the fatal duel with General Hamilton, he was indicted for murder by the Grand Jury of New Jersey by flight sought a refuge in the South, living in obscurity there until the meeting of Congress, when again he appears as President of the United States Senate. His term of office expired, he goes West and becomes the master spirit of an ambitious scheme to invade Mexico. But he is brought hack a prisoner of State to Richmond, charged with high treason, was tried and acquitted. This happened in the year 1808 and only fifty-two years old, his locks were quite silvered, but his form still erect his eye sparkled with undiminished radiance. His trial was one of the most remarkable in our nation’s history. John Randolph, of Roanoke, the illustrious orator, was the foreman of the Grand Jury, and the eminent John Marshall the presiding judge. Not less than five lawyers, with the prisoner himself, appeared in the defense.
The fifty witnesses were sworn, and their tedious cross-examination disclosed depths of perjury. Still, the Government, after every attempt, failed to obtain a conviction. Aaron Burr, a man of plots and conspiracies, was acquitted, but ruined. From the public indignation, however, he was compelled to leave his native land. Looked upon with suspicion in England, he retired to France, there living in reduced circumstances, and at times not able to procure a meal.
Thus an alien for several years, he obtained from Jeremy Bentham the means to return home, and landing at Boston without a cent, he found himself still an object of distrust to all. Since his departure to Europe he had received no tidings of his beautiful, accomplished, and devoted daughter Theodosia. She had married, in 1800, Governor Allston, of South Carolina, and the first news he now heard was that his grandchild, her only son, in whom his soul delighted, had died, while he was an outcast.
She had been married young, when her father had reached the zenith of his fame. She was not only a lady of rare endowments, but of the most refined feelings, an elegant writer, devoted as a wife and mother, and a most dutiful and affectionate daughter. As the clouds of sorrow and adversity gathered around him, and he was deserted by friends he had formerly cherished, she clung with redoubled affection to her father’s terrible fortunes, while the dark clouds of sorrow and adversity gathered around him.
Upon his arrival, Colonel Burr immediately informed Mrs. Allston of it, when she promised to meet him in New York in a few weeks. She had now become his all on earth — wife, grandchild and friends were all gone, and this precious daughter alone remained to welcome him from his exile and cheer the evening of his checkered and sorrowful life. Days and months passed away without any intelligence from his daughter, when he grew more and more impatient, almost doubting the sincerity of her affection. At last, however, he received a letter from Governor Allston, stating that she had sailed some weeks before for New York in a vessel expressly chartered by him for the purpose. But this vessel never arrived undoubtedly all on board perished at sea, as no tidings have ever since been heard of her fate.
Now Burr’s last link of life was broken and his cup of sorrow full! The mysterious uncertainty of her death greatly increased the poignancy of his accumulated griefs, and hope the last refuge of the afflicted and the bereaved, became extinct as years rolled on.
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The Real Treason of Aaron Burr
In 1807, Aaron Burr was tried and acquitted on charges of treason for his "adventures" in the American West, but he had fallen out of favor in American life long before, after he had run for president against Thomas Jefferson, served a single term as vice president, and shot and killed Alexander Hamilton in an 1804 duel. A free spender, a womanizer, and the only Founding Father who was actually descended from the English aristocracy, Burr was famously secretive and conspiratorial. In this lecture, historian Gordon S. Wood, Alva O. Way University Professor and Professor of History Emeritus at Brown University, argues that Burr's true treason was not his actions in the West but his naked ambition and his lack of principles and character that made him a threat to the young republic.
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Can Aaron Burr be redeemed?
Illustration: Daniel Baxter
Aaron Burr Jr. 1772 may have killed Alexander Hamilton in their celebrated 1804 duel, but the shot was no less fatal to Burr’s reputation. While the duel didn’t put an end to Burr’s public life, his status as one of the most brilliant, interesting, and far-seeing of the founders has not survived that encounter beneath the cliffs at Weehawken. Making matters worse, there was the small matter of Burr’s trial for treason less than three years later, when he was accused of leading a motley group of disaffected military officers and fortune-seekers on an expedition to conquer Mexico (Burr’s story) or tear the Western states and territories away from the Union (Thomas Jefferson’s story).
At the hands of Henry Adams and dozens of other historians, biographers, and writers of fiction, Burr — acquitted on all charges — has been portrayed as a conniver, a cynic, and a seducer. He has become an archetype, the “bad” founder, an American Lucifer who fell from grace. While Hamilton adorns the $10 bill, Burr is forgotten except when he is scorned.
Now, 200 years after his return from self-imposed exile in Europe, the third vice president at last is getting another look. During the summer, the Grolier Club in New York hosted a large exhibition of Burr memorabilia, displayed as evidence of his progressive views. In her well-received 2007 biography, Fallen Founder, Lousiana State University historian Nancy Isenberg makes a convincing case that Burr has been unfairly maligned. Sean Wilentz, Princeton’s George Henry Davis 1886 Professor of American History, argues in his Bancroft Prize-winning book, The Rise of American Democracy: Jefferson to Lincoln, that Burr deserves recognition for pioneering many modern political tactics. While it may be too much to call this attention to Burr a rehabilitation, it is, at least, forcing a re-examination and even something of a reappreciation.
In many ways, Burr is more appealing to us than he was to his contemporaries. The son and grandson of two ministers and Princeton presidents, Aaron Burr and Jonathan Edwards, both of whom died when Burr junior was a boy, he grew up with the Enlightenment’s faith in human reason. Young Burr always was a rationalist, and in later life came to embrace Jeremy Bentham’s Utilitarianism. Even his detractors conceded his genius. He first applied to Princeton when he was just 11 years old, and was accepted at 13.
Physically, Burr was barely taller than James Madison 1771 and already balding as a young man, but he had piercing dark eyes and women swooned for him. Sexually voracious throughout his life, Burr was also a proto-feminist who appreciated Mary Wollstonecraft’s revolutionary book, A Vindication of the Rights of Woman, as “a work of genius” and gave his only child, his daughter Theodosia, the same classical education he would have given a son.
Part of Burr’s problem, from a historian’s perspective, is that for most of his life he was content to stand apart — “a faction unto himself,” as Wilentz puts it in his book. He had a distinguished military career during the Revolution but little respect for George Washington’s generalship, and he declined an offer to serve on Washington’s staff. In 1788, he allied himself with anti-Federalists in opposing the new federal constitution and declined to participate in New York’s ratifying convention.
As a state assemblyman, Burr supported laws for the manumission of slaves (although he owned slaves when the practice was still legal in New York). By the time he was elected to the U.S. Senate in 1791, many saw him as a rising national leader. He was promoted as a possible vice-presidential candidate in 1796, and four years later, in 1800, he was Thomas Jefferson’s running mate. It was Burr, in fact, more than anyone who secured the election for Jefferson, although he soon would be accused of trying to steal it from him.
In those days, presidential electors were chosen by the state legislatures, and New York’s legislative elections were held early, in April. By outmaneuvering Hamilton and the Federalists, and briefly uniting the bickering Republican factions, Burr secured New York for Jefferson. He did it by employing what we would admire as a strong political ground game. Rather than affecting to be above politics, as Jefferson did, for example, Burr campaigned openly, made detailed lists of likely voters and party donors, and turned his house into a campaign headquarters.
Then an odd thing happened. Although Burr was Jefferson’s running mate, candidates did not run as a formal ticket, as they do today. The candidate receiving the most electoral votes became president, while the runner-up became vice president. When Jefferson and Burr finished with the same number of electoral votes, the election was thrown, for the first of two times in American history, to the House of Representatives. Although Jefferson’s partisans later accused Burr of maneuvering to steal the presidency for himself, evidence suggests that it was Jefferson who engaged in behind-the-scenes arm-twisting that succeeded, after 36 ballots, in giving him the presidency.
Many assumed that, as vice president, Burr eventually would succeed Jefferson, but the faction of one found himself assailed from all sides. The aristocratic Republican families in New York viewed him as an interloper. Jefferson feared that he might challenge his protégé and fellow Virginian, James Madison, for the presidency. Burr maintained cordial relations on both sides of the aisle, but that only deepened suspicions about him. When the Republicans met in early 1804 to select their candidates, Jefferson arranged to have Burr dumped in favor of another New Yorker, Gov. George Clinton.
Burr’s bitterest enemy was Hamilton, who recognized Burr as a rival to his own political power in the state. Hamilton hated Burr, and the feeling was mutual. Where Burr was direct, though, Hamilton dealt innuendo and character assassination with gusto. Much of Burr’s reputation for being unprincipled and untrustworthy, in fact, came first from Hamilton’s poison pen. Hamilton’s recklessness frequently got him into trouble he had challenged or been challenged to duels 11 times, though none — until the encounter with Burr — had reached the dueling ground. Indeed, to read Isenberg’s account of Hamilton, it is surprising that no one shot him sooner.
Shortly after Burr lost the New York gubernatorial election in 1804, a small item appeared in an Albany newspaper in which a Dr. Charles Cooper quoted Hamilton making disparaging remarks about Burr’s character. Hamilton had been making such comments for years, but always behind Burr’s back. This was the first time the press reported such words as coming directly from Hamilton’s mouth, and they required an explanation. When Hamilton gave an evasive and unsatisfactory answer, Burr demanded satisfaction.
Dueling was illegal in New Jersey but rarely was prosecuted, so many New Yorkers took their conflicts across the river. Often, duels were a kind of a theater: Both parties would fire into the air, honor would be satisfied, and everyone would go home in one piece. That did not happen at Weehawken. Accounts conflict as to whether Hamilton fired first or even fired at all. It does appear that the guns Hamilton insisted on using had a larger bore than usual and that his had a special hair trigger, which could have given him an unfair advantage. Ironically, Isenberg suggests, if Hamilton had used Burr’s smaller set of dueling pistols, he might have survived his wound.
Although he was investigated for murder in both New Jersey and New York, Burr managed to avoid the law simply by staying out of their jurisdiction. Incredible as it seems, he was hardly a pariah when he returned to Washington. The Federalists shunned him, but many Republicans greeted him warmly, and Jefferson even dined with him at the White House. Indeed, that fall Burr enjoyed perhaps his greatest moment, presiding as vice president with dignity and impartiality over the Senate impeachment trial of Supreme Court Justice Samuel Chase. Two days before he left office in March 1805, Burr delivered a farewell address that left many senators, including his political enemies, in tears.
As a future candidate, though, Burr was finished, and his career took a sharp turn. The country buzzed with rumors of war against Spain, which controlled the territory adjacent to the newly acquired Louisiana Purchase. As notions of America’s Manifest Destiny began to emerge, many members of both parties hoped to “liberate” Mexico, whether the Mexicans wanted liberation or not. In the event of war — but only if, Burr later insisted — he proposed to lead a private army into Mexico City and install himself as the head of a free republic.
The term for this sort of freelance expedition was a “filibuster” (it did not become associated with long-winded congressional debates until the 1850s). Throughout 1805 and 1806, Burr traveled around the country assembling about 80 supporters, including Jonathan Dayton 1776 and then-Maj. Andrew Jackson. Burr’s chief confederate was Gen. James Wilkinson, and here was a real villain. At the same time Wilkinson was preparing American military forces for a possible war in New Orleans, he was taking bribes from the Spanish government, and he had participated in an earlier plot to break Kentucky away from the United States.
What was Burr up to? That remains a question. Although filibusters weren’t exactly legal — leading one in peacetime was a misdemeanor — they were not as traitorous or as uncommon as we might think today. During the Revolution, for example, American Gen. Richard Montgomery had led one into Canada to free the Canadians from the English. Furthermore, anyone who could read a newspaper knew that Burr was organizing some sort of armed expedition, and this certainly included President Jefferson, who met with Burr during one of his recruiting trips.
But Burr also spent a lot of time in the wilderness with dodgy characters, and there is at least circumstantial evidence that his intentions were more malign. Anthony Merry, Great Britain’s ambassador to the United States, quoted Burr in one of his dispatches as offering to help the British take western territory from the United States in exchange for half a million dollars. Burr himself made some impolitic remarks — perhaps in jest, perhaps not — about wanting to invade Washington and toss Jefferson and Congress into the Potomac.
Burr arranged to store supplies at a place called Blennerhasset Island in the Ohio River, which would serve as a rendezvous point for the expedition. Rumors that he was up to something led the U.S. attorney in Kentucky to indict Burr for treason, but Burr, with the help of his lawyer, Henry Clay, got the charges dismissed. Wilkinson, though, began to fear that his own illegal activities would come to light and decided to save himself by betraying Burr in a letter to Jefferson. Wilkinson, in fact, painted himself as a hero who had uncovered the nefarious plot.
Jefferson, who had been oddly passive about Burr’s activities, suddenly forwarded to Congress evidence he had received of the alleged conspiracy and pronounced that Burr was guilty “beyond question” — before Burr even had been charged. Burr surrendered to authorities in Mississippi and was taken to Richmond for a trial presided over by Chief Justice John Marshall.
Marshall, a Federalist, was no more a friend of Jefferson’s than Burr was. Treason is the only criminal offense for which the Constitution specifies a standard of proof: an overt act of aggression corroborated by two eyewitnesses. The alleged overt act was a small gathering of Burr adherents, who may or may not have been armed, on Blennerhasset Island. But even the government had to concede that Burr had been hundreds of miles away on the day the so-called army had assembled. To surmount this obstacle, prosecutors alleged that Burr was guilty of “constructive treason” — in other words, that he was responsible because he had set the conspiracy in motion, whether or not he actually had participated in the overt act.
Burr was ably defended by Luther Martin 1766, another longtime enemy of Jefferson’s known as “Old Brandy Bottle,” who characterized the government’s case as “will o’ the wisp” treason. “It is said to be here and there and everywhere,” Martin said, “yet it is nowhere.” Wilkinson, who was involved in the plot up to his eyeballs, avoided Richmond until the trial was almost over, and then was forced to concede that he had altered a key piece of government evidence. Marshall ruled that the government had failed to prove an overt act, and so the jury found Burr not guilty. Burr later was acquitted of leading a filibuster, too, when the government could not prove that it had been aimed at Spanish territory.
Although Isenberg argues persuasively that Burr never intended to lead a secessionist movement, what he might have done had the opportunity presented itself never will be known. Former president John Adams wrote to Benjamin Rush 1760 that Burr must have been “an idiot or a lunatic” to have gotten involved in such a mess, adding, “I never believed him to be a fool.” Even under the most charitable interpretation, Wilentz argues, Burr deserves history’s censure for sowing dissension among soldiers at a time when the American tradition of civilian control over the government was not yet a sure thing.
“Burr spent a lot of time playing on the frustrations the old-order military people had with Jefferson,” Wilentz says. “And that, to me, is dangerous. It may have made sense politically, but in terms of the institutions of American government, it was very dangerous [for Burr] to be fomenting a major’s plot.”
Broke, shunned, and fearing for his safety, Burr spent the next five years in Europe. After the British kicked him out (possibly because of American pressure), he moved on to Sweden, Germany, and France, where he tried to sell Napoleon on his idea of conquering Mexico. Returning to New York in July 1812, he hung out his shingle, representing many widows and orphans and operating what Isenberg calls one of the country’s first family-law practices. Politically and socially, however, Burr remained poison, and tragedy was never far away. His only grandson died at the age of 10, and just months later his beloved Theodosia was lost in a shipwreck. Many of Burr’s papers are believed to have gone down with her, which may explain why he can be such an enigma.
Recent additions to the scholarly literature, such as Isenberg’s and Wilentz’s books, have had a positive effect on Burr’s reputation, says Elaine Pascu, a senior associate editor of the Jefferson Papers project, which is headquartered at Firestone Library. But as for reclaiming his place in history, Pascu adds, “I think that will take a little while yet.”
Isenberg believes that her book has revived popular interest in Burr and will cause future historians to rethink the obloquy that has been heaped on him over the generations. Her portrait of Burr and his dealings with the Founders frees him “from the stranglehold of myth” by focusing on the outsized role that mudslinging newspapers, personal rivalries, and the struggle between the New York and Virginia factions of the early Republican party played in the emergence of the party system. But she does not expect an end to the debate. “Burr’s character will continue to be attacked,” she predicts, “because Americans like simple stories with heroes and villains.”
In the end, Burr outlived his enemies, although he spent the remainder of his life living in obscurity and intermittent poverty. He died Sept. 14, 1836, less than five months after a group of Virginia and Tennessee filibusterers defeated the Mexican army at the Battle of San Jacinto, securing independence for the Republic of Texas. The leader of that insurrection, Sam Houston, became an American folk hero.
Today, Alexander Hamilton lies beneath a splendid obelisk in the graveyard of Trinity Wall Street in lower Manhattan. Aaron Burr is buried in the presidents’ section of Princeton Cemetery, at his father’s foot. The surrounding gravestones are all in neat rows, but Burr’s is the only one in that section that is out of line. It is as if he was squeezed in, an afterthought for all eternity.
Mark F. Bernstein ’83 is PAW’s senior writer.
For the record
This a corrected version of a story from the Oct. 10, 2012, issue. Firestone Library is the headquarters of The Papers of Thomas Jefferson project. The location was given incorrectly in the earlier version.
Was Aaron Burr acquitted of charges of plotting to set up an empire?
September 1, 1807 — Aaron Burr was acquitted today of charges of plotting to set up an empire. A Founding Father — and the man who killed Alexander Hamilton in a famous duel three years earlier — Burr had stepped down from the vice presidency after serving under Thomas Jefferson from 1800 to 1804.
In that time, he devised a plan to annex sections of Louisiana and Mexico in order to establish an independent republic over which he would rule. Enlisting the help of James Wilkinson, the commander in chief of the US Army, Burr petitioned the British government for assistance but was unsuccessful.
Continuing with his plan, he led an armed group of colonists toward New Orleans in the fall of 1806. However, the attempted siege ended when Wilkinson, concerned over the possibility of punishment, alerted the government to Burr’s act of treason. Burr was arrested in Louisiana and sent to face trial in Virginia. He was acquitted on the grounds that he had not engaged in an “overt act” against the United States.
Words of Wisdom
Never do today what you can as well do tomorrow, because something may occur to make you regret your premature action.— Aaron Burr, US Senator and Vice President of the United States under Thomas Jefferson
Aaron Burr is arrested for treason
On this day in history, February 19, 1807, Aaron Burr is arrested for treason. Aaron Burr was America’s third Vice-President under Thomas Jefferson. He is best-known today for killing Alexander Hamilton in a duel after some private comments Hamilton made disparaging Burr’s character were made public and Hamilton refused to retract the statements.
Less known is an incident Burr was involved in after his term as vice-president ended along with his political career due to the Hamilton incident. After his term, Burr went west to the American frontier and purchased land in the newly purchased Louisiana Territory, where he became involved in a scheme to either develop a new state in Louisiana or, more seriously, to conquer part of Mexico, apparently hoping to revive his political career.
This was illegal because Mexico was still a Spanish possession and only the United States government had the authority to make war or negotiate with foreign governments. Burr worked together with US General James Wilkinson who was the US Army Commander at New Orleans and the Governor of the Louisiana Territory. Together they developed their plans and raised a small privately funded army to accomplish their ends. They even negotiated with Great Britain, which considered aiding their plans, but eventually pulled out.
General Wilkinson eventually became nervous that the plans would fail and he could be implicated in a crime. He turned on Burr and wrote to President Thomas Jefferson about Burr’s plan and accused him of treason. In addition, some of Jefferson’s slave-holding supporters demanded that he do something about Burr because whatever territory Burr ended up controlling would be slave-free, since he was firmly against slavery. They did not want a slave-free territory in the south. Jefferson eventually charged Burr with treason, a charge which didn’t exactly fit the crime. Burr tried to escape to Spanish Florida, but was caught at Wakefield in the Mississippi Territory on February 19, 1807.
Burr was tried in a sensational trial in Richmond, Virginia beginning on August 3. He was represented by Edmund Randolph and Luther Martin, both former members of the Continental Congress. The evidence was so flimsy against Burr that four grand juries had to be convened before the prosecution could get an indictment. General Wilkinson, the chief witness for the prosecution, was found to have forged a letter, allegedly from Burr, stating his plans to steal land from Louisiana. This weakened the prosecution’s case and left Wilkinson in disgrace.
Chief Justice of the Supreme Court, John Marshall, oversaw the case and was pressured by Thomas Jefferson to make a conviction. Marshall, however, did not find Burr guilty of treason and he was acquitted on September 1. He was then tried on a more reasonable misdemeanor charge, but was acquitted of this charge as well.
After the trial, Burr’s hopes of reviving his political career were dead and he fled to Europe. For several years, he attempted to talk various European governments into cooperating with his plans to conquer Mexico, but he was rebuffed by all. Eventually he returned to the United States and resumed his law practice in New York, where he maintained a relatively low profile for the rest of his life.
National Society Sons of the American Revolution
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