The Treason Trial of Aaron Burr: Law, Politics, and the Character Wars of the New Nation by R. Kent Newmyer (review)

The latest contribution to the recent outpouring of scholarly and popular books about Aaron Burr, the Burr Conspiracy, and the Burr trials, R. Kent Newmyer’s The Treason Trial of Aaron Burr grounds the celebrated trial squarely in the field of legal history. The Burr trial is valuable, in Newmyer’s view, because it “affords historians a unique glimpse of judicial lawmaking in the young republic,” not because it helps us better understand either Burr or the conspiracy (212). Read on those terms, this book makes a valuable contribution to its field.

Because the Burr trial was at once precedent-setting and well-documented, Newmyer argues, it allows us “to capture the lawmakers of the new nation in the act of making law” out of the “collision between the inherited law of monarchical England” and “the perceived needs of the new republic” (4). This idea of lawmaking extends far beyond constitutional conventions and legislative bodies to emphasize the enforcement and, especially, adjudication of the law. As Newmyer shows with the Burr trial, judges (particularly Chief Justice John Marshall, sitting as a circuit court judge in Richmond), lawyers (including nearly all of the leading figures of the Virginia bar), and executive officers (most importantly President Thomas Jefferson) all took part in the contest to transform the constitutional definition of treason into something that could be used to decide guilt or innocence in specific cases. This process, moreover, involved forces remote from both the original intent of the authors of the Constitution and the American and English case history. “The ideological convictions, character traits, and personal quirks of the lawmakers and the political framework created by the new Constitution” contributed to the emergence of new legal doctrines regarding treason, as Newmyer demonstrates (4).

Much of the book narrates and analyzes a yearlong sequence of legal proceedings that began in the fall of 1806. This encompasses grand jury hearings into Burr’s actions in Kentucky and the Mississippi Territory; circuit court and Supreme Court rulings regarding Burr’s associates Erick Bollman and Samuel Swartwout in the nation’s capital; and the multiple stages of Burr’s trials for treason and misdemeanor in Virginia. These proceedings raised a number of important legal questions. Was there a “common law of crimes” inherent in the sovereignty of the federal government that made some acts, such as conspiring to commit treason, illegal even though Congress had never acted to outlaw them (4)? Had American jurisprudence incorporated an English doctrine of “constructive treason” that effectively eliminated any distinctions between accessories and principals and between conspiring and participating (61)? As Newmyer shows, the Burr controversy often propelled leading Republicans and leading Federalists to answer these questions in ways that conflicted with their ideological convictions and earlier stances.

Burr himself plays a supporting role in the book, and is more acted upon than acting. The key figures are Marshall and Jefferson, and Newmyer’s assessments of these two men differ dramatically. Perhaps not surprisingly, Marshall emerges as the hero. By holding firm against a torrent of popular and presidential pressure, Newmyer argues, Marshall confined treason within the narrow definition of the Constitution, and thus prevented it from becoming a means by which presidents could destroy (literally) their political opponents. Jefferson, far more than Burr, stands as the villain. Newmyer depicts the president almost gleefully seizing upon an opportunity to destroy his political rival Burr and his judicial nemesis Marshall by taking control of, first, the trial and, later, the reaction to its outcome in ways that were “unprecedented” for a president (1). In this study of what the subtitle calls “law, politics, and the character wars of the new nation,” Marshall embodies “law,” while Jefferson embodies “politics.”

One of the shortcomings of this work is Newmyer’s...