Aaron Burr Trial: 1807

On March 26, 1807, Burr was taken by his captors to Richmond, Virginia, for trial before the federal court. Normally, Judge Cyrus Griffin of the District of Virginia would have presided over the trial. At the time, however, Supreme Court Chief Justice John Marshall was present in Richmond to hear appeals from the circuit that encompassed Virginia. Griffin soon found himself playing second fiddle to the eminent Marshall, who took control over the widely publicized trial.

The principal charge against Burr was treason against the United States. The prosecutors also made a related charge of "high misdemeanors" against Burr. George Hay, William Wirt, and Gordon MacRae formed the team of prosecutors for the government. Hay was a prominent attorney, thanks largely to his political connections as James Monroe's son-in-law. Wirt, a tall blond man, had a reputation for having an excellent courtroom presence. MacRae was primarily a politician and, in addition to being a prosecutor, was also Virginia's lieutenant governor.

Burr's defense attorneys were Edmund Randolph, John Wickham, Luther Martin, and Benjamin Botts. The distinguished Randolph was not only a former attorney general, but had served as George Washington's Secretary of State and as Governor of Virginia as well. Wickham, Martin and Botts were also widely respected and prominent attorneys.

Their task was also much easier than that of the prosecution, due to the particular requirements of Article III, Section 3 of the Constitution.

Article III, Section 3 states:

Treason 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.

Thus, the prosecution not only had to produce two witnesses, but those witnesses had to have seen some overt act by Burr in "levying war" or leading the planned revolt against the United States. Luckily for Burr, he had not been present in Ohio when Governor Tiffin's militia stormed Blennerhassett's island compound. As Burr himself stated, Jefferson's prompt action based on General Wilkinson's confession led to the destruction of the plot before the procrastinating Burr had taken much action: "Mr. Wilkinson alarmed the President and the President alarmed the people of Ohio."

Marshall's concern over whether the prosecution could bear the heavy burden of proof demanded by the Constitution caused the trial to be delayed until August 3, 1807. In the interim, the prosecution presented a series of witnesses, including General Wilkinson. These witnesses testified as to treasonous statements made by Burr and on the military preparations made on Blennerhassett's island. The evidence presented convinced a grand jury that Burr should be tried on the charges filed against him, and Marshall finally opened the trial.

The prosecution, led by Wirt, argued that Burr's involvement in the conspiracy made him "constructively present" on the island and thus involved in an overt act. Referring to the mercenaries arrested during the Blennerhassett raid, Wirt said:

What must be the guilt of [Burr], to that of the poor ignorant man who was enlisted into his services with some prospect of benefitting himself and family?