In 1806, Aaron Burr did what he did best: he sparked a controversy, heading west with a small private army to take some kind of military action in Spanish territory. We still do not know precisely what Burr had in mind; about this, as about most things, he remained coy. Regardless of the details, his western wanderings, joined with some alleged contact with Spanish and British envoys and rumors that he planned to sever the Union, earned him a charge of treason. Burr's trial in Richmond in 1807, presided over by Chief Justice John Marshall—sitting as a trial judge on circuit—was a cause célèbre that packed the courtroom, filled the city with curious onlookers, and provided months of newspaper fodder. Add the involvement of President Thomas Jefferson, who was keen to convict his former Vice President, and you have a courtroom blockbuster. The Treason Trial of Aaron Burr, a volume in the Cambridge Studies on the American Constitution series, tells that story.
Newmyer is the perfect person to plunge into this legal tangle and emerge with deep meanings and broad implications. Two of his previous books—Supreme Court Justice Joseph Story: Statesman of the Old Republic (1985) and John Marshall and the Heroic Age of the Supreme Court (2001)—prove his expertise in early national law and legal culture. Newmyer is not the first scholar to tackle the so-called “Burr Controversy,” but his approach is new; he uses a detailed recounting of the trial as a lens to provide insight into the making of law, the molding of governance, and the culture of lawyering in the new nation.
Tracking the trial chronologically, Treason Trial is divided into five chapters: the first offering background to the trial, the second introducing the major players and setting the scene, the third depicting the trial's “legal theater,” the fourth discussing the trial's impact on treason law, and the fifth discussing the trial's impact on Marshall. An epilogue explores further implications that developed in the wake of the trial, including a brief discussion of its relevance to U.S. v. Nixon (1974).
In a sense, this book does double duty. On one level, it is a narrative history of a nation-gripping trial with a stellar cast, and Newmyer serves this purpose well; he is a lively writer with a wry sense of humor who captures the trial's quirky cast of characters and sustains a sense of courtroom drama.
But the book is more than a simple narrative. With its detailed rendering of the trial's complex nuts and bolts—which Newmyer presents with admirable clarity—Treason Trial offers a deeply felt sense of the early national legal community struggling to construct legal precedents in a new and fragile nation. Specifically, he argues that the trial touched on the very foundations of republican law and governance, shaping prevailing understandings of the rights of criminal defendants, the legal definition of treason, and the constitutional separation of powers.
Newmyer proves his argument by immersing readers in the trial. The chapter on treason law is a good case in point. Newmyer aims to show the “pragmatic, non-ideological way” that counsel “matched old law, new law, and current politics to fit the needs of the new republic” (109). He achieves this goal by putting readers in the courtroom alongside the principal actors as they struggled and argued and invented and persuaded their way into concocting an American definition of treason. He succeeds admirably without surrendering the trial's sense of theater. Indeed, he incorporates that sense of theater into his argument, suggesting that it reflected American legal culture at a moment of transition, as an older generation of lawyers gave way to a new, more rambunctious generation who “set aside social pedigree to make their living and their reputations by fighting it out in the courtroom” (188).
The book also explores the period's melding of law and politics. In 1807, the United States was still defining basic terms: figuring out how a republican mode of politics would work. In the young and impressionable republic, legal decisions were political almost by default; they were virtually bound to have a powerful impact on the nation's nascent political infrastructure and character. Newmyer shows how this awareness by both Jefferson and Marshall guided their actions and made their efforts that much more heartfelt and urgent.
This sense of emotional engagement is at the core of Newmyer's assertions about character. Throughout the book, he asserts the importance of personal character, personal reputation, and personal grudges in the trial and its surrounding controversies. He seems to be reaching for the idea that personal factors could have profound legal and political implications, given the fluid state of affairs in the young nation. It is a valid point that deserves further study; however, the book only touches on it, never quite fulfilling the promise of its subtitle.
This weak link does not detract from Treason Trial's many merits. It is a skilled and detailed recounting of Burr's trial, it reveals a host of legal and political implications bound up in the trial and its outcome, and it is an entertainingly good read as well. Anyone seeking to understand the ground level churnings of early national courtroom law at a moment of transition, and the ways in which those churnings shaped the nation, will be well served by this book.
