The Trial of Aaron Burr

by Joseph P. Brady

The third day of the trial, the Chief Justice delivered his written opinion. “On an application of this kind,” says he, “I certainly should not require that proof which would be necessary to convict the person to be committed on a trial in chief; nor should I even require that which should absolutely convince my own mind of the guilt of the accused; but I ought to require, and I should require, that probable cause be shown; and I understand probable cause to be a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it.” The Chief Justice then reviews the testimony of General Eaton and General Wilkinson in the Swartout and Bollman case to show how far these charges are supported by probable cause, and in conclusion delivers himself as follows: “I shall not therefore insert in the commitment the charge of high treason, since it will be entirely in the power of the Attorney-General to prefer an indictment against the prisoner for high treason should he be furnished with the necessary testimony.”

Burr was now called upon to give bond, and the amount to be required of him gave rise to much discussion. The Chief Justice stated, “that he wished it to be neither too large to amount to oppression, nor too small to defeat the objects of justice.” It had occurred to him that the sum of ten thousand dollars would perhaps avoid both these extremes. Mr. Hay earnestly insisted upon a larger amount, but the amount was fixed at ten thousand. Burr was then bailed for his appearance at the next term of the Circuit Court of the United States to convene at Richmond on the 22d of May next, to answer the charge of high misdemeanor.

Aaron Burr was now at liberty. President Jefferson was enraged at the result of the first trial. The feeling between the partisans of the Administration and the Federalists, to which political party Marshall belonged, was rampant. The friends of Jefferson charged Marshall with having permitted his political bias and personal dislike of the President to warp his judgment in favor of Burr throughout the trial, and Jefferson in one of his letters to Senator Giles, written a few days after Burr’s first examination at Richmond, refers to the tricks of the judges in hastening the trial so as to clear Burr. It was evident that Jefferson was to be the real prosecutor of Burr, and had made up his mind to convict him at whatever cost.

The 22d of May, 1807, the United States Circuit Court for the Virginia District convened in the House of Delegates in the City of Richmond, Virginia, with Chief Justice Marshall and Cyrus Griffin, District Judge, on the bench.

Long before the hour the Court was to meet the hall and the entrances to the Capitol were thronged with people. Not a few of them were witnesses and persons summoned as grand jurors, while others were attracted by the notoriety of the trial. There could be seen John Randolph, of Roanoke, “the brilliant, eccentric leader of the Quids,” in the House, and afterwards United States Senator from Virginia; Andrew Jackson, who was loud in his denunciation of Jefferson and his administration for “persecuting his innocent friend”; Winfield Scott, then a young lawyer just admitted to practice; General Eaton, with a grudge against the Government for its failure to pay his claim for services and cash advanced while consul in Barbary, and with whom Burr had talked with great freedom about his plans; Commodore Truxton, another disgruntled officer of the Government in whom Burr had confided; Col. Morgan, a valiant old campaigner from the West, and his two stalwart sons, whose services Burr tried to enlist, but whom Jefferson credited with giving him the first intimation of Burr’s designs; John Graham, who had been sent out by the Administration to the Mississippi territory as its confidential agent to circumvent Burr and expose the conspiracy; Colonel Dupiester, one of the leading spirits in the plot and Burr’s trusted friend and ally; Jonathan Dayton, formerly speaker of the House of Representatives and Ex-Senator from the State of New Jersey, and John Smith, lately a Senator from Ohio, both friends of Burr and prominent in the conspiracy with him; Dr. Erick Bollman, an educated German, who had recently distinguished himself by a gallant but unsuccessful attempt to rescue Lafayette from prison in the castle of Olmutz, Austria, and in whom Burr had confided. Jefferson expected Bollman to give testimony that might criminate himself, and during the trial sent through District Attorney Hay a pardon for him, which Bollman indignantly refused to accept. And thither also came Governor Alston of South Carolina, and his wife, the beautiful and accomplished Theodosia, the only daughter of Aaron Burr; who had fled to his side the moment she had heard of his arrest.

The court was formally opened at half past twelve o’clock, and probably there never was such an array of learning and legal attainments as was present on that occasion. Foremost and overshadowing all was John Marshall, the Chief Justice. “Gentlemen of the profession,” said Parton, “who witnessed the trial, who saw the effective dignity with which the judge presided over the court, who heard him read those opinions, so elaborate and right, though necessarily prepared on the spur of the moment, regarded it as the finest display of judicial skill and judicial rectitude which they had ever beheld.”

Seated at the bar and appearing in behalf of the United States were Colonel George Hay, William Wirt and Alexander MacRae.

Colonel Hay was a son-in-law of James Monroe, who was afterwards President of the United States. He was a lawyer of great industry and much ability, and bore the laboring oar in the trial. He was a zealous partisan of Jefferson, and was assisted in the prosecution by almost daily communications from him. Later he was appointed United States judge for the Virginia district. Mr. Wirt was present at the personal request of President Jefferson. He was the most eloquent and accomplished advocate then at the Richmond bar. There was no one whose rising to speak “so instantaneously hushed the spectators to silence.” “A handsome, fortunate, brilliant, high-minded man was William Wirt,” says Parton, “the toil of whose life it was to achieve those solid attainments which alone make brilliancy of utterance endurable in a court of justice.” Mr. MacRae, the third attorney for the government, was then Lieutenant-Governor of Virginia, and while less able than his two colleagues, was a lawyer of “respectable ability and a sharp tongue.”

On the side of the defense were the greatest lawyers of the time. The best known of them was perhaps Edmund Randolph. Mr. Randolph had been a delegate to the Continental Congress and to the Philadelphia Constitutional Convention, Attorney-General and Governor of Virginia, and Attorney-General and Secretary of State under Washington. He was a man of great experience and learning. Associated with him from the day of Burr’s arrival in Richmond was John Wickham, grandfather of the late General W. C. Wickham and great-grandfather of Hon. Henry T. Wickham, an eminent member of the present bar of Virginia. Mr. Wickham was regarded by many as the ablest lawyer at the Virginia bar. “The qualities,” says Mr. William Wirt in the British Spy, “by which Mr. Wickham strikes the multitude are his ingenuity and his wit. But those who look more closely into the anatomy of his mind, disclose many properties of much higher dignity and importance. This gentleman, in my opinion, unites in himself a greater diversity of talents and acquirements than any other at the bar in Virginia.” Another great lawyer of counsel for Burr, and probably the greatest one of his day, was Luther Martin of Maryland. He and Burr had formed a friendship about two years before in Washington, when Justice Chase of the Supreme Court of the United States was impeached by the House of Representatives and tried by the Senate for abuse of his office in certain political trials. Burr was then Vice-President of the United States, and presided over the Senate in that celebrated proceeding, says a contemporary, “with the dignity and impartiality of an angel, but with the rigor of a devil.” Martin was the leading counsel for Justice Chase, and greatly distinguished himself. Conspicuous also was Benjamin Botts, father of the distinguished John Minor Botts, who although the youngest man on the side of the defense, had already become eminent in his profession.

The other counsel for Burr were Charles Lee, an Ex-Attorney-General of the United States, and a lawyer of much learning; “Jack” Baker, who was more of a “good fellow” than lawyer; and Washington Irving, then attracting some attention in the field of letters, who to use his own words, “went to Richmond on an informal retainer from one of the friends of Col. Burr,” although, as he said, “his client had little belief in his legal erudition, and did not look for any approach to a professional debut, but thought he might in some way or other be of service with his pen.”