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If This Be Treason

Updated: Feb 20

In a fiery speech, the only kind he knew how to make, Patrick Henry railed against the Stamp Act in 1765 declaring that Caesar had his Brutus, Charles the First his Cromwell, and that George III may profit from their example when the Virginia House of Burgesses erupted in shouts of "treason!". At that moment, the great orator missed no cadence or beat by declaring that, "if this be treason, make the most of it."

Today, we call the folks who rose up then Revolutionaries and Founding Fathers. These men - and they were all men - crafted the governing documents including the Constitution. That document defines treason for its own purposes and would have excluded Mr. Henry from having committed it - words are not enough.

The Constitution explains that, “[t]reason 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.” U.S. Const. Art. 3, sec. 3. This is not about whether declaring that the NATO alliance is nothing more than a contract of payment for services adheres to enemies of the United States, suggesting treason. It is not about the death of a man accused of the equivalent of treason in his own land, but who was a hero beyond measure as a defiant voice of democracy in an autocratic dystopia.

It is, instead, about the accusation in 1807 when, 217 years ago this week, Aaron Burr was arrested for the crime of treason.

For those unfamiliar with Burr, he was a brilliant lawyer, a politician, Alexander Hamilton’s killer, and a schemer in every possible sense of the word. One of his schemes was to obtain funds to start a bank which he did by half-heartedly starting a water supply company in Manhattan. Huh? Okay - there was a need for clean water in New York City. The state had a clause in its business charter for this water supply company to use surplus funding for banking purposes. The water supply company was an abject failure which was okay for Burr because what he really wanted was to muscle in on his nemesis, Hamilton, who was cornering the banking market.

Only a tiny fraction of the enormous funds raised to begin the water supply company were spent on providing clean water. The bulk was spent setting up a banking operation. If there is a chef’s kiss for history, it applies here because the bank Burr started was housed at 40 Wall Street in NYC, a location now owned (at least for the moment) by a schemer turned politician who makes Burr look like the pinnacle of American patriotism by contrast.

So, what happened? Why was Burr accused of treason? Briefly – Burr served as Jefferson’s Vice President from 1801-1805. Honestly, no one in Washington liked the guy – Jefferson was not alone in refusing to support him for a second term as Vice President. No one wanted him around.

As Vice President booted from his party’s ticket in the upcoming election, the year 1804 was pretty awful for Burr. First, he ran for Governor of New York and lost badly. Alexander Hamilton may have made a few unflattering comments as to Burr’s character which caused Burr to kill him in a duel in New Jersey and then flee South to avoid being charged with murder that same year. Oh - and he was still Vice President of these United States (so, ummm, no immunity for crimes committed while serving as Vice President -ergo - no immunity for crimes committed while President, but I digress). 

No one seems to know exactly what he did as Vice President aside from not really ever being in Washington to actually do anything there, but that gig was just about over, and Burr needed something new, something fresh. When the governorship did not pan out, he conspired with others, including General James Wilkinson, to seize land in southwestern US and in parts of the region controlled by Spain, move the US states there to secede, entice US citizen inhabitants to join him in his colonization efforts, bring in support from jolly old England (you know, the folks from whom America recently broke free), and create a new country. We don’t know this for certain, but he may have thought about calling his new nation Burr After Ceding.

Well, General Wilkinson got cold feet and dropped a proverbial dime on his pal, Aaron. Burr was arrested for treason – the trial was remarkable as the presiding judge was also the Chief Justice of the Supreme Court of the United States – the prosecution was directed from afar by the president – those two men were cousins who also happened to despise each other - it was epic.

Burr was acquitted, but only because there was insufficient proof that he committed an overt act in furtherance of his conspiracy against the United States. This was decided by a jury thanks to instructions by the trial judge...who was also the Chief Justice of the United States...who just 4 years earlier reserved for his branch of government the final say on all things Constitutional. Burr had a Constitutional First Amendment right to speak out against his government, and the prosecution failed to prove he did anything more than that. In Burr's defense, the prosecution's case was weak. Burr denied the charges and argued that he planned to farm a large plot of land in the area gifted to him by the Spanish king. The jury instructions were – in modern terms – very favorable to the defense.

It is reasonable to believe that even if Justice Marshall despised Burr, and even if Marshall thought Burr was guilty of treason, there was just no way he was going to hand Thomas Jefferson a victory in this case. Justice Marshall must have concluded that Burr would be disgraced either way; it would be terrible for the young nation to hang him, too.

Trial location rabbit hole: There was no Supreme Court building in 1807. There were no circuit courts of appeal either. The Justices of the Supreme Court rode circuit. Burr's trial was held in Richmond, Virginia with Chief Justice Marshall presiding as he was on that circuit at the time. 42 years prior, Patrick Henry's famous speech cautioning King George III to watch his back and to be wary on the Ides of March, and to watch his head in the sights of powerful leaders in Parliament took place in Richmond as well. Richmond would also go on to become the seat of the confederacy when the southern states in rebellion sought to maintain their barbaric life dependent on enslaving other human beings 54 years after this trial. Although it looks like a lovely place today, it is interesting that one city has so many instances of treason associated with it.

Just as Justice Marshall must have anticipated, although acquitted, virtually everyone thought of Burr as a traitor. He was despised by the Democrat-Republicans, his own party, for opposing Jefferson and conspiring against the US while serving as Vice President. Fair. He was despised by the Federalists for killing Hamilton. Fair. He had no friends. So, he went to Europe where he, apparently, made no friends. He would return to the United States and again practice law in New York, this time under an assumed name. He lived in disgrace and died in debt.

The young republic in the early 19th Century struggled to find its footing. Land acquisition ran amok; land speculation was even more wild. Political parties were vicious foes. It would be nice to be able to say there were good guys and there were bad guys, but that is never true. There are only complicated, complex human beings. Insanely brilliant men like Jefferson also enslaved human beings; and bright, accomplished men like Burr who supported abolishing slavery, granting the right to vote to women, and defending immigrant rights also killed a man in a duel over words and was probably a traitor.

The beginning of criminal process against Burr for treason began 217 years ago this week. But, his story continues. Why did he have such an obsession with running his own country after the one he helped form made clear to him that they did not want him to run theirs? By all accounts, Burr was an excellent lawyer and a very good politician. He tried to pass some great legislation that would have made him a hero if he had been successful. That is, like Benedict Arnold, another brilliant, otherwise accomplished American turned traitor, Burr had so much potential for a positive legacy. We can never know why he chose to throw it all away.

But, maybe that is who turns to treason in the end - those who see themselves in a spotlight, in glory, surrounded by fans - and when that fails to become a reality, they blame reality instead of the false vision. They lash out at real leaders and seek to force others to see only their own view of who they are and what they should be accomplishing. Both dreamers and turncoats reject their plight. Unlike those who risk everything for a vision of a better world, whether they be the Revolutionaries who succeeded in their quest for autonomous rule or Alexei Navalny, who end up killed by the horrors against which he fought, betrayers show themselves for who they really are - selfish and stubborn bullies who will rail against the truth until the day they die. No matter what labels brand them in life, history will reveal that the former are heroes, the latter traitors.



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