The Trial of Aaron Burr

by Joseph P. Brady

“In Great Britain,” he said, “there are no less than ten different species of treason; at least that was the number when Blakstone wrote, and it is possible that the number may have been increased since. But in this country, where the principle is established in the Constitution, there are only two descriptions of treason; and the number being fixed in the Constitution itself, can never be increased by the legislature, however important and necessary it should be, in their opinion, that the number should be augmented. By the third section, article 3 of the Constitution of the United 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.’ With respect to the latter description, there is no occasion to say anything, as the offense charged in the indictment is ‘levying war against the United States’; but it adds that ‘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 first witness called was General Eaton. Colonel Burr objected to the order of the testimony. He said Mr. Hay had not stated the nature of the witness’ testimony; but he presumed that it related to certain conversations said to have happened at Washington. He contended that no such evidence as that, which tended only to show intentions or designs, was admissible until an overt act of treason had been proved. This question was ably argued by counsel on both sides.

The next day the Chief Justice decided that so far as the testimony of General Eaton “relates to the fact charged in the indictment, so far as it relates to levying war on Blannerhassett’s Island, so far as it relates to a design to seize on New Orleans, or to separate by force, the Western from the Atlantic states, it is deemed relevant and is now admissible: so far as it respects other plans to be executed in the City of Washington, or elsewhere, if it indicate a treasonable design, it is a design to commit a distinct act of treason, and is therefore not relevant to the present indictment. It can only, by showing a general evil intention, render it more probable that the intention in the particular case was evil. It is merely additional or corroborative testimony, and therefore, if admissible at any time, it is only admissible according to the rules and principles which the court must respect, after hearing that which it is to confirm.”

General Eaton was then called to the stand and examined. He stated in the beginning that he knew nothing of any overt act of treason on the part of Burr, or of any of the happenings on Blannerhassett’s Island; but that he knew much concerning Burr’s expressions of treasonable intentions.

The next witnesses called to prove treasonable designs were Commodore Truxton, Peter Taylor, Blannerhassett’s gardener, and Colonel Morgan and his two sons.

The prosecution now took up the testimony to establish the overt act and called to the stand Jacob Allbright, Peter Taylor, William Love, Maurice P. Belknap and Edmund B. Dana. These witnesses proved the assemblage of men, some thirty or more, on Blannerhassett’s Island, December 10th, 1806, armed with rifles and pistols, the pretended purpose of which was to descend the Ohio River to the City of New Orleans, and make it the base of operations in an expedition to Mexico; but failed to prove the act of levying war.

It was not proved that Burr was present on the Island when the assemblage of the men took place.

The only witness, who gave any direct testimony on the overt act sought to be proved was Allbright, and he was discredited on cross-examination. He testified on the night of the flight from the Island that “a man by the name of Tupper (meaning General Tupper), laid his hands upon Blannerhassett, and said: ‘Your body is in my hands, in the name of the Commonwealth.’ Some such words as that he mentioned. When Tupper made that motion, there were seven or eight muskets leveled at him. Tupper looked about him and said ‘Gentlemen, I hope you will not do the like.’ One of the gentlemen who was nearest about two yards off said ‘I’d as leave as not.’ Tupper then changed his speech, and said he wished him to escape safe down the river, and wished him luck.”

At the conclusion of the evidence relating directly to the overt act charged in the indictment, counsel for the prosecution attempted to introduce collateral testimony of acts beyond the limits of the jurisdiction of the court; but Colonel Burr and his counsel strenuously objected to such testimony as wholly irrelevant and inadmissible, and moved the court to arrest the evidence on the ground that the United States had failed to prove an overt act, constituting treason, under the Constitution of the United States.

The argument on this motion, which was so vital to the further prosecution of the case commenced on the 20th of August, and continued until the 29th of that month, and was “doubtless,” says Parton, “the finest display of legal knowledge and ability of which the history of the American bar can boast.”