Clash of Titans
A game of hardball among the Founders.
Nov 26, 2012, Vol. 18, No. 11 • By J. HARVIE WILKINSON III
So what kind of man was Aaron Burr? Not, perhaps, the pure villain one might think. Few people are all bad and, as to Burr, Newmyer rightly attempts to balance the ledger. He notes that Burr fought bravely in the Revolution, that he was a devoted father to his daughter Theodosia, that he “served effectively” as vice president, and, most poignantly, that for four years he cared for his friend and defense attorney at his trial, Luther Martin, after Martin “suffered a paralyzing stroke.” Still, Newmyer’s statement that, in his headstrong actions and “open defiance of polite conventions,” Burr was “America’s very own Lord Byron” seems, alas, a bit much.
The remarkable thing about America’s Founding period is the extent to which it was driven by attachments to ideas and principle. The great figures of that period (Adams, Jefferson, Hamilton, Marshall, James Madison, George Washington) are all distinguished by their commitment to a cause much larger than themselves. And for all his better moments, Burr could be astonishingly selfish. Witness, for example, his relative indifference to his own “army,” some of whom, at least, were prepared to sacrifice considerably for him. One need not take every instance of the Founders’ self-professed idealism at face value to note that Burr’s gaze throughout this period was (as Newmyer acknowledges) firmly fixed on Number One.
As for Marshall, Newmyer goes a tad too easy on him. Shortly before the trial, Marshall attended a party for Burr thrown by Burr’s chief counsel, Wickham. Whether “the gentlemanly tradition of the Richmond bar and Marshall’s long friendship with Wickham” explain his presence, or whether he “toasted Burr’s health” out of respect for his host, seem largely irrelevant in view of his initial lapse of judgment. Then, too, Marshall’s brother-in-law Edward Carrington was foreman of the jury, and, during the trial, Marshall issued a subpoena duces tecum to President Jefferson, an acknowledged archenemy whose views on popular sovereignty and states’ rights differed markedly from Marshall’s own. Finally, he issued crucial restrictive rulings on what evidence the prosecution might introduce, causing critics to think, not implausibly, that he was bent on directing a jury verdict for the defendant.
Taken in toto, and even given the fact that judicial ethics were vastly less developed than they are today, the chief justice’s actions may yet have given the young republic an ill-advised display of pronounced judicial partiality.
Notwithstanding all this, Newmyer gives Marshall high marks for his conduct of the trial. Despite the unfortunate appearances, the judgment seems sound. Marshall’s job was to see that a man whose guilt was assumed almost from the moment of accusation nonetheless received a fair trial. His subpoena sought to give Burr the right to present evidence critical to his defense, and his evidentiary rulings sought to limit the trial to those charges actually set forth in the indictment. Further, Marshall’s demeanor in the midst of the encircling mayhem remained calm, and his rulings were laid forth in language that preserved the high ground of legal principle even as they proved difficult for the public to read or comprehend.
The great Marshall opinions in Marbury, McCulloch, Gibbons, and the like secured his place in history; they also secured the place of the courts as a true Third Branch. In the early years of the Republic, the federal judiciary needed to prove itself not just at the heights, but on the ground. The Burr trial helped to do that. Newmyer notes that “the one principle” Marshall never compromised during the trial “was his commitment to judicial duty and judicial independence.”
For that, he paid a heavy price. A Baltimore mob hanged him in effigy for siding with the “traitor.” Republican partisans sought to arraign the Federalist Marshall before “the bar of the public” as a “disgrace to the bench of justice.” The Burr trial also precipitated calls to impeach Marshall in the Senate, calls encouraged by President Jefferson. Yet Marshall had to know this was coming: If a collateral benefit for Marshall of Burr’s acquittal was Jefferson’s acute discomfort, that does not, in the end, outweigh the course of courage and independence he set for federal courts.