Marshall and Taney, John Marshall & the Heroic Age of the Supreme Court, and Supreme Court Justice Joseph Story: Statesman of the Old Republic.He applied the “Page 99 Test” to his latest book, The Treason Trial of Aaron Burr: Law, Politics, and the Character Wars of the New Nation, and reported the following:
Rather than page 99, let's move the action back to page 97-98 beginning with the last paragraph on page 97 and ending with the next-to-last paragraph on 98:Learn more about The Treason Trial of Aaron Burr at the Cambridge University Press website.The subpoena motion also dramatized the fact that the president himself was on trial. The man chosen to drive the point home was Luther Martin. The Marylander’s style set him apart from the other two great lawyers in the trial: Wickham, who appeared to soar above the fray while being fully engaged in it, and Wirt, whose soaring rhetoric was always self-consciously proper. In contrast, Martin was down-home, rough-hewn, and unrestrained. He was also a passionate friend of Burr and Theodosia. Fresh from defending Justice Chase in the impeachment trial in 1805, he was an equally passionate hater of Jefferson. He was also a great trial lawyer, a street fighter with a copious legal mind and a quiver of poison arrows that he now let fly at Jefferson.This passage occurs in Chapter 3, "Legal Theater in Richmond," which sets the stage for the trial and for the remarkable performance of the lawyers involved, whose role has never been fully told before. Whether contemporaries loved or hated Luther Martin, he was a show-stopper in Richmond. He was a master of invective, a brilliant lawyer--an American original. His personal attack on the president was heartfelt, but it was also a bold, calculated adversarial tactic.
One of those arrows carried an American message delivered in a distinctive American idiom, the first of several more to come. The legality of the subpoena motion, which Martin discussed with learned references to English authorities and American practice, was his segue to Jefferson’s un-republican behavior. “Surely these gentlemen,” he said, referring to Hay and company, “do not intend to represent the president as a kind of sovereign, or as a king of Great Britain. He is no more than a servant of the people.”
And what did this humble servant do? “He has assumed to himself the knowledge of the Supreme Being himself, and pretended to search the heart of my highly respected friend. He has proclaimed him a traitor in the face of that country, which has rewarded him. He has let slip the dogs of war, the hell-hounds of persecution, to hunt down my friend.”
So much for the author of the Declaration of Independence and the self-appointed defender of American liberties. As for James Wilkinson, the president’s chief hell-hound: why shouldn’t the defense have access to his letters to the president regarding Burr’s alleged treachery? Perhaps, the general “is not as pure as an angel.” Before you buy his story—this to the grand jury and the assembled worthies--remember “that this man has already broken the constitution to support his violent measures; that he has already ground down the civil authorities into dust; and subjected all around him to a military despotism.” No wonder Jefferson dubbed Martin “an impudent federal bull-dog” and suggested to Hay that, “as particeps criminis with Burr,” he might be prosecuted for “misprision of treason at least.”
The point of Martin's tirade was to demonstrate that Burr was the innocent victim of a personal vendetta carried on by a vengeful and ruthless president whose hatred of Burr caused him to run roughshod over due process of law and the constitutional rights of criminal defendants. The sources indicate that Jefferson was in fact guilty on both counts. The president's personal involvement in the conduct of the government's case also came out during the trial.
Burr's lawyers also succeeded in associating Jefferson with the government's chief witness James Wilkinson, the flamboyant general of the army who in fact had been associated with Burr in his "conspiracy" and who turned states evidence to save his own hide. Wilkinson proved to be the prosecution's weakest link and the general pulled the president down with him.
Jefferson's involvement in the prosecution, unprecedented in American history, brought him into conflict with his old enemy Chief Justice Marshall. Jefferson was convinced that Marshall was out to embarrass him as he had done in the recent case of Marbury v. Madison. By the end of the trial the president was as interested in getting Marshall impeached as he was in getting Burr convicted. In addition to adding spice to the drama, the confrontation between the president and the chief justice turned a great criminal trial into a major contest over judicial independence and the constitutional meaning of separation of powers.
While there were no perfect heroes in the case, Marshall comes the closest. For seven long, hot months he managed to keep brilliant and overwrought counsel in line. As a trial judge he was eminently fair. His ruling on evidence, which all but guaranteed Burr's acquittal, was a signal victory for the constitutional rights of criminal defendants. And when, in one of the most dramatic moments of a drama-packed trial, Marshall issued a subpoena to the president ordering him to produce documents in his possession necessary for Burr's defense, he struck a powerful blow for both due process of law and the independence of the federal judiciary. Marshall's ruling on the subpoena also proved to be the foundation of the Supreme Court's famous decision in the Watergate tapes case of U.S. v. Nixon. Finally, Marshall's narrow definition of treason (in Article III, Section 3 of the Constitution) reduced the likelihood that treason would become an instrument of political coercion. With the help of the lawyers, Marshall made some good republican law that even Thomas Jefferson should have liked.
--Marshal Zeringue
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