How We got Basic Rights in Criminal Courts, A History Lesson

A History Lesson in Aaron Burr

When it comes to Aaron Burr, history has it wrong. I asked my son Spencer to show me his American History book this year so I could inspect its reportings on Aaron Burr. As suspected, there was a short blurb void of facts and a speculative conclusory statement referencing Burr's dubious ambition in separating the American west from the east, even though this is not true.  The Texas School Board, is not alone, despite its notorious criticisms. One can go back to real time obituaries of Aaron Burr and read such innuendos.  History is for those who write it. History does not always add up to facts.  That is why I decided to get down into the complex minutiae of the actual Aaron Burr trials so that I could grasp the issues clearly.  I had no idea that his case was the definitive case that gave our citizens in practical reality the right to counsel, the right to bail, the right to confront one's accusers, the right to inspect evidence. My concern that a great Founding Father be properly remembered and honored in truth morphed into an inspiring illumination of how so many essential rights of an accused came into being. In fact, U.S. v. Burr has been cited in courts  383  times since 1807 solidifying the basic doctrines of citizens accused ever since the original Not Guilty verdict.

As background, before reading this book (The Treason Trials of Aaron Burr by Peter Hoffer), I was well aware of the political animosity Jefferson had towards Burr from the contested election of 1800 in which it took the casting of ballots 36 times before the tie was finally broken. I was also aware that Jefferson had paid muckrakers throughout his political career to anonymously smear his political opponents. I was not prepared however for the lengths Jefferson would be willing to go to prove his  political points and rid the country of his political enemies.  Chief Justice John Marshall said that Jefferson did not have the proper moral character to be President.  To put Jefferson's role in the Burr trials in a nutshell, here is a cursory summation.  He directed that Burr be arrested and prosecuted on the basis of a letter Burr wrote to General James Wilkinson of the New Orleans territory. Wilkinson claimed Burr wanted to "levy" a war with Spain, which was a neutral country, and that constituted treason.  Furthermore that the act of levying war was the men and arms Burr had gathered in preparation of war on Blennerhasset Island.  Here is why two juries rendered quick Not Guilty verdicts: the alleged Burr letter was not written by Burr at all but by Wilkinson and Burr was not even on Blennerhasset Island when the alleged "levying for war" took place. What we now know after Wilkinson's death is that Wilkinson was a paid spy for Spain. He obviously had to get rid of the threat Burr posed to Spain in colonizing America, at the time in possession of the Floridas.  Truth is Burr had arranged for men, ammunition and boats to gather at Blennerhasset Island to help settle the west against Indians. Burr had specifically purchased financial interest in a large tract of land out west known as his Bastrop purchase. He was also helping other men speculate out west  for financial gain (paper currency at the time was highly inflated and of little value). It was necessary to have boats and ammunition to settle the land.  In Burr's own words, before treason was a sparkle in Jefferson's creative mind, he wrote on Nov. 27, 1806 to William Henry Harrison "I have no wish or design to attempt a separation of the Union... it is true that I am engaged in an extensive speculation and that with me are associated some of your intimate and dearest friends." Wilkerson's concern was that Burr would indeed settle the American west and this would threaten Spain's interest of retaking New Orleans and more of the western territories.  Wilkerson's double dealing and necessity of getting rid of Burr fit perfectly into Jefferson's plan of having Burr hung for treason and thereby ridding himself of his most formidable political contender. 

To ensure a conviction, Jefferson had Burr arrested without bail (he suspended writs of habeas corpus declaring a threat to national security), sought to deny him access to a lawyer, sought to deny him the right to examine the evidence (the letter Wilkinson forged), and sought to have him convicted (on the basis of the forged letter) without the right to confront his accuser (Marshall ruled Wilkinson had to testify).  Jefferson directed George Hay, his prosecutor, to pay witnesses out of his funds (letter dated May 26) and gave him six pardons (three were blank) in an attempt to sway witnesses (the others Jefferson had arrested as coconspirators for treason, none of which were found guilty). He instructed Hay that if Bollman (a Burr friend also attempting to settle lands out west) "rejects his pardon... move to commit him immediately for treason..."  Chief Justice John Marshall in both the Bollman and Burr trials, set bond, allowed them lawyers and access to the evidence and the right to cross examination (with Jefferson sighting executive privilege fighting all the way). After the Not Guilty verdicts (Jefferson had Burr tried twice on two different treason counts), Jefferson unsuccessfully attempted to have Chief Justice Marshall impeached. Not learning a lesson, Jefferson attempted again to use a  treason charge to prove a political point when he had a smuggler caught shipping goods to Canada during the Embargo Act unsuccessfully prosecuted for treason.

What historians fail to recognize is that Burr had every legal right to fight Spain once war was levied (as it later was as Mexico fought to retain Texas), Burr was just waiting for Spain's first move as he settled the American West. The Burr treason trials are very important to American history and criminal jurisprudence in that it proves the executive branch cannot usurp the judicial branch for political purposes.  In the early days of establishing the relations between the three branches of government, it is sad that Aaron Burr was the scapegoat and test case for Jefferson politics gone awry. To survive those ghastly trials, he had to be strong and in doing so he made sure that our American justice system could  not be used as a tool against against anyone for political reasons. That is why his case keeps coming up whether it is Nixon fighting to hand over evidence that would impeach him or a Vietnam War protestor (Watts v. U.S) being safe and free to speak his mind without threat of treason.

Was Burr an ambitious man ? Yes, no different than most of the Founding Fathers. How he did differ was that his character did not allow him to viciously attack his political foes or abuse his power. His parting speech as Vice President and President of the Senate (where he established rules still in use today) brought tears of admiration from his fellow Senators. He was championed  for fairly and adeptly handling the Justice Samuel Chase impeachment trial as President of the Senate, making sure politics did not trump the rules of law (Not Guilty as it was a political attack), little did he suspect that the example he set would later benefit him.  True to his generosity of heart and spirit, when Luther Martin  (one of his defense lawyers in the treason trials) approached him in old age needing shelter, Aaron Burr took care of him inhis New York City home  till Martin passed.  Burr from youth on, spent his entire life advocating against slavery and promoting women's equality (his education and training of his only child Theodosia exemplifies this).  I think it is about time the history books get it right.  Aaron Burr is a true American hero with the kind of fortitude this country desperately needed at at time where our experimental democracy could easily have gone the road of despotism.