Aaron Burr: Motion to the Court to Limit Prosecution Evidence

Explanation and Analysis of the Document

A politician and Revolutionary War hero who served as the nation's third vice president, Burr was involved in what came to be known as the Burr conspiracy. With military aid from Great Britain, Burr believed that he could form a new nation out of America's western states and the Louisiana Territory, and he communicated his ideas to the Great Britain's ambassador. While Burr was traveling in the western United States after the conspiracy came to light, he was arrested and brought to trial in two states and was found not guilty twice. In February of 1807 he was arrested once more, this time on federal charges.

The federal trial's judge, Chief Justice John Marshall, had already presided over the treason trial of two of Burr's associates, Erich Bollman and Samuel Swartwout, who had carried letters for Burr. Of the many crimes that can be legally charged in the United States, treason is the only one defined in the Constitution. The Constitution limits the sorts of crimes that may be part of law, but the work of defining those other than treason is left to statutes. The writers of the Constitution were very familiar with the practice of European governments of extending treason to thoughts, spoken words, and associations with traitors. Almost anyone could be pulled off the street, charged with disrespecting a monarch, and then hanged. The Founding Fathers wanted the definition of treason to be severely limited, so that freedom of thought and political opinion would be protected. A traitor was someone who participated in an armed attack on the United States or who aided a foreign power in harming the United States.

In the case of Bollman and Swartwout, Marshall had the opportunity to rule on what was required for a conviction of treason: The accused traitors had to have actively participated in a military force that either attacked the nation or its representatives or that was about to attack the United States, or they had to have materially aided a foreign power to harm the nation. Neither had done more than talk and write about the possibility of creating a new nation in the west, and thinking about treason was not treason. They were acquitted. In his opinion, Marshall made an aside that a person who helped equip or organize a military force could be considered a part of such a force if it ever assembled, even if he or she remained far from the action.

It was on this last point that prosecutors made their case against Burr: He was a traitor for organizing a military force intended to attack Americans. Further, they charged that he had also broken a statutory law that forbade Americans from privately waging war on a nation with which America was at peace—in this case Spain. Burr wanted the court to limit testimony to address only the specific charges against him. He notes that 135 witnesses had already been called and that the prosecution was planning to call hundreds more. According to Marshall's previous ruling in the Bollman and Swartwout case, two unimpeachable witnesses to the act of treason had to testify that they saw firsthand the acts of treason. The prosecution had produced witnesses who suggested Burr had thought about some sort of military adventure, but the gathering of young men in Ohio had featured far more in the way of food and camping equipment than weapons, and no one ever saw them assemble into a military formation in preparation for attacking someone. Essentially, Burr is arguing that the prosecution is trying him through character assassination, which he suggests is associated more with despotic practices under English common law than with the dictates of the Constitution. He contends that habeas corpus means that only evidence of the specific crime at issue should be presented to the court. The prosecution asserted that its countless witnesses were laying a foundation for evidence of the specific crimes with which Burr was charged. Marshall had accepted this explanation from the prosecution much earlier in the trial, when it became clear that witnesses were repeating the same stories over and over, with the requirement that the prosecution limit itself to only a few witnesses for each event. At this juncture he ruled in favor of Burr, and the precedent was established that only evidence related to the specific crimes charged could be presented by the prosecution in a criminal trial.

Again, Burr creates some confusion by referring to himself in both the first and third person, seeming to shift to the third person when discussing himself as his own client, as happens in the opening paragraph. The clerk who set down the text does a good job of distinguishing the voices of the various speakers, so that there is little doubt who is speaking at a given moment; the document captures some of the atmosphere of the complex debate that occurred in the courtroom during the trial. Those passages not identified as coming from George Hay (the chief prosecutor), John Wickham (a defense attorney), or Luther Martin (a defense attorney) are Burr's voice. Burr and his lawyers seek to narrow the question of treason to whether there is any evidence that the assembly of people on Blennerhassett's Island could be shown to be a military force, rather than just settlers gathering before making a voyage to their new homesteads, and whether Burr could be said to be involved in any activity on the island when he was far away in New York when the supposedly treasonous events transpired.