On May 22 the Circuit Court of Appeals for the District of Virginia, before which Aaron Burr was to face the charges of treason and high misdemeanor, convened at 12:30 o’clock. But first a grand jury would have to be picked and pass on the charges. Far ahead of the hour a throng moved on the hall of the House of Delegates where the session was to be held. It was a throng composed solely of men, for a court of law in Virginia in those days was no place for a lady. Save in Virginia’s great debate on the ratification of the Constitution in the convention of 1788 Richmond had never before seen such a colorful and distinguished assemblage.

For days strangers had been descending on the city from all sides until the taverns and inns were filled to capacity. The hardier stock from the western outposts of the Commonwealth did not even try to find accommodations: they brought tents with them and camped on the low ground beside the river. Some came out of curiosity, others were there on court business. The administration’s offensive to counter the Chief Justice’s demand for witnesses to Colonel Burr’s alleged criminalities, directed by the Federal officials in the western country and spurred on by the tireless efforts of the patriotic Wilkinson, had borne results. It was estimated that persons concerned in the trial as counsel, witnesses, and in other official capacities reached a grand total of 200. So large was the crowd in the hall that lawyers of long service at the local bar were forced out of their rightful places by officious interlopers. This was no commonplace gathering. Here and there could be distinguished men who had already made their names in history and others who later were to become famous.

Anybody who was familiar with the Navy would have recognized two veteran sailors, their faces bronzed by wind and sun and salt spray, who had served their country well. They were Stephen Decatur the elder and Thomas Truxtun, commodores both. Decatur boasted commendable service as a privateersman in the Revolutionary War, but he was to be overshadowed by his son of the same name. Truxtun, too, began his naval career as a privateer in the struggle for independence. Later he supervised the building of the frigate Constellation and, on her completion, took command and mustered her first crew. His latest exploits were the capture of the frigate L’Insurgente and the defeat in battle of the frigate La Vengeance in the quasi-war with France.

Present, too, was William B. Giles, loyal party man and President Jefferson’s leader in the Senate. He was there, oddly enough, under a summons of the United States Marshal for the Virginia District to be a member of the panel from which the Grand Jury was to be chosen. Burr thought it unreasonable, considering Giles’s politics. Soon he was going to say so.

There, too, was “General” Eaton, author of the affidavit, now present in person. The “Hero of Derne” wore a broad scarlet sash around his middle which provided an exotic touch to his costume and a silent rebuke to those who questioned his title and his fame. Eaton was a great talker and, so it was said, when not attending court spent the better part of his time at the tavern bars.

One might have marked a handsome young man with blue-gray eyes and a head of abundant chestnut hair. He was a stranger to Richmond and his accent betrayed a northern background. His name then meant nothing to anybody save the little group of Burr’s friends who had come down from New York to lend the prisoner moral support during the trial. This was Washington Irving, lately returned from a European tour. He had read law and been admitted to the New York bar; there was a report to the effect that he had actually had a client. But even at this early stage in his career he was more active with his pen. He and his older brother William, and William’s brother-in-law James K. Paulding, had just launched a sprightly magazine satirizing New York society under the title of Salmagundi. Brother William and Paulding were having to carry the burden while Washington was away.

William was a Republican, Washington’s sympathies were Federalist. Fastidious by nature, Washington rose superior to the unpretentious merchant family into which he had been born. The Irvings, on the other hand, were immensely proud of their precocious son and all too glad to give him a helping hand in his rise in the world. They liberally financed the trip to Europe and it had been a great success. There young Irving made the grand tour and lived in style in the Paris of Napoleon’s empire. He had himself fitted out by the best tailor. He sat for the rising young American painter, John Vanderlyn, then resident in Paris. The work seems to have been undertaken out of the sheer delight of the artist in having such a pleasing model.

On his travels Irving had made the acquaintance of two Virginia gentlemen of the bluest blood, a Mercer of Fredericksburg and Joseph Cabell, the Governor’s brother. He looked forward to renewing the acquaintance on his trip south, particularly that with Cabell who had just married Mary Walker Carter. Irving was told she was one of the wealthiest young women in the state. The young New Yorker was there on a literary retainer. It was said that some of Burr’s friends thought he might help the cause through his writings. But if any of his accounts of the trial ever got into the newspapers the record of them has been lost.

A familiar figure to most of the Virginians in the hall was a tall, gaunt man with absurdly long legs for so short a body who spoke in a high falsetto voice. His leather breeches and his riding boots identified him as a country squire. In actual fact he had ridden up to Richmond from his estate, Bizarre, some sixty miles to the south. This was the brilliant and eccentric John Randolph, master as well of Roanoke. A horse, he once said, was to him what a ship was to a sailor. A member of Congress, Randolph had acted none too astutely as one of the Managers, or prosecutors, in the impeachment trial of Judge Chase. He, too, had received a summons from the Marshal to appear for jury duty. Like the Chief Justice and Edmund Randolph, he was a part of the lengthened shadow of the prolific Turkey Island pair, William and Mary Isham Randolph.

Standing out conspicuously in that dense throng was still another youth. His height alone would have distinguished him, for he was 6 feet 4½ inches tall. Not content with looking over the heads of the crowd he climbed up on the great lock of the entrance door of the hall in order to get an unobscured view of the proceedings. From his perch he had a good look at the accused. Colonel Burr saw him, too. The young man was Winfield Scott. Years later, when he had become one of the nation’s great soldiers, the two met again and Burr reminded the general of the encounter. Contemporaries described Scott as the most magnificent youth in all Virginia.

At the time of the trial young Scott was reading law in the office of David Robertson, of Petersburg. Not only was Robertson well grounded in Blackstone and Coke and the intricacies of the Virginia statutes, he also was an accomplished linguist with a knowledge of five languages. What is more, he had trained himself to take notes in shorthand, and he was present at the trial to record the proceedings. Thanks to David Robertson, posterity has in two fat volumes a reliable verbatim account of much that was said at the trial. It was at Robertson’s suggestion that young Scott came to Richmond to get a first-hand impression of the leaders in what he then intended to be his chosen profession.

Better known to the Richmonders of the day than he was to be known to posterity was a queer Scotsman named James Ogilvie who was to be a regular attendant at the sessions. According to local gossip he was heir to an earldom and had passed up the title to become an impoverished schoolteacher in Virginia. Elocution was his forte and he not only came to the trial himself but brought his pupils along so that they could have a practical demonstration of the art of oratory from the greatest practitioners of the day. Ogilvie was in bad repute with the local clergy. Either an atheist or an agnostic, he traveled about delivering “infidel lectures.” He was blamed for shaking the religious faith of a number of Virginia’s young men. But the Devil got him in the end. As an elocutionist he failed to live up to his own exacting standards, grew melancholy, and committed suicide. Or so it was said. A less romantic account of his death attributed it to an overdose of laudanum, a drug to which he had become addicted.

On this day there were new faces both among the counsel for the defense and for the prosecution. Now associated with Edmund Randolph and John Wickham was Benjamin Botts, the youngest lawyer on either side, bubbling over with the wit and sprightliness of youth. Already he had made his mark at the Virginia bar.

When Caesar Rodney peremptorily retired from the case President Jefferson at once recognized that the plodding District Attorney Hay needed reinforcement. William Wirt seemed the ideal choice; the summons went out from the White House and Wirt accepted. Wirt’s Swiss and German background, which he inherited respectively from his father and his mother, showed itself in his curly blond hair, his blue eyes, and his fair complexion. He was built in heroic proportions, over six feet tall, broad-shouldered, with thick eyebrows, a wide forehead, a prominent nose, and ample chin. With his agreeable countenance he combined rare good humor and graciousness. A young woman who came under his spell remarked that Wickham was handsome but that he seemed insignificant in contrast to the manly beauty of Wirt. The same young woman observed that while Wickham went out of his way to please he could not suppress an air of condescension. Wirt, on the other hand, contrived to give the flattering impression, not that he was trying to please, but that he himself was being entertained.

Like Hay, Wirt was self-made. His father, too, was an innkeeper in the 1770’s, at Bladensburg, Maryland, a few miles north of the future site of the national capitol. At an early age William was left an orphan, but from the start he had the gift of making friends. Among other accomplishments he sang and played the violin. His schooling completed he read law, moved to Virginia, and was admitted to practice in Culpeper County. There he met and married a daughter of Dr. George Wilmer, a man of prominence in the community and a friend of Thomas Jefferson. Through his father-in-law Wirt was introduced to Jefferson and also to Madison and Monroe and was an ardent follower of what was known in the political world as “the Virginia dynasty.”

These early associations, combined with his own superior talents, played an important part in the fashioning of Wirt’s career. Five years after their marriage Wirt’s young wife died and the rising young lawyer moved to Richmond. For a time he held the office of clerk of the House of Delegates, then served briefly as Chancellor of Virginia. He was a frequent visitor at Gray House, the home of Colonel Robert Gamble, a prosperous merchant. This imposing dwelling, on a hill overlooking the James River and commanding an extensive view of the river valley and the rolling country of Chesterfield County on the other side, had been built for Colonel Gamble by Benjamin Latrobe, an architect recently arrived in this country from England. In 1802 Wirt took as his second wife Colonel Gamble’s daughter Elizabeth, and through that connection became the brother-in-law of Governor William H. Cabell who married Elizabeth’s older sister Agnes.

Wirt was well known to the Richmond bar where he had appeared in a number of important cases. A notable one was in defense of the nephew of Chancellor Wythe, law teacher of Jefferson and Marshall. The nephew was charged with the murder of his uncle by putting arsenic in his coffee. Wirt was reluctant to take the case and did so only under a sense of duty. He handled it so successfully that the nephew was exonerated. If that constituted a gross miscarriage of justice, as many then believed, the blame could not be put on Wirt. He was now to have an equally spectacular chance to show whether he would be as good a prosecutor as he had been a defender. At the time of the trial the Wirts were sharing the Gray House with the Gambles senior and the Cabells. It was a gay and accomplished household.

Present also with the prosecution was Alexander MacRae, who held the honorable office of Lieutenant-Governor of Virginia. One of the seven sons of a Scotch parson who was an ardent Tory in the Revolution, MacRae showed his independence by embracing the American cause and ending as an equally ardent Republican. He had a reputation at the local bar for a sharp tongue and a sour disposition. One observer remarked that where Wirt used a rapier MacRae’s favorite weapon was a meat axe. In contrast to Wirt’s bonhomie MacRae gave the impression of being completely indifferent to popularity. MacRae was among the elect in residence on Shockoe Hill. His house was within a stone’s throw of those of the Chief Justice and Mr. Wickham. Neighborly though they may have been, neighborliness did not extend to Mr. MacRae being included in Mr. Wickham’s notorious dinner.

So dense was the crowd in the courtroom that it was with difficulty that Chief Justice Marshall, clad in his robes of office, made his way to the bench. He was accompanied by Judge Cyrus Griffin, of the Federal district court, who sat with the Chief Justice throughout the trial.

Cyrus Griffin was no ordinary man. He was fortunate in being born the son of Col. Leroy Griffin, of Lancaster County, Virginia, and his wife, Mary Anne Bertrand. His parents sent him to be educated in England, a privilege that was reserved for the sons of the well-to-do. He studied law in the Temple, then met and married Lady Christina, daughter of John Stuart, sixth Earl of Traquair, in the Scottish peerage. On his return to this country, in spite of his years in England and his Scottish wife, he adhered to the American cause, was elected to the Continental Congress, and for a time served as its president. In politics he was a Federalist.

Now he sat beside Chief Justice Marshall. Once in the course of the long trial the Chief Justice inquired of Judge Griffin about past procedure, in a minor incident leading up to the trial, on which his recollection was vague. From Judge Griffin he received an answer. If the Chief Justice ever deferred to him again, if the Chief Justice so much as asked his colleague how he was bearing up under the heat, the record is silent on the matter.

At the time of the trial Judge Griffin had been on the Federal bench for 18 years. In the course of that long service there were many times when he had had to render decisions. In rendering them he must perforce have had to think. Cyrus Griffin was not a wax effigy. There must have been a heart beating under his judicial robes. He must have taken pride in his office. But if the Chief Justice, other than on the occasion mentioned, reflected that it would be considerate at least to make a pretense of consulting his fellow jurist, the record does not show it.

All we are told is that Judge Griffin sat on the bench with the Chief Justice. So he goes down in history as a footnote. But he should be a footnote in heavy black type. For in his humble position in that famous trial he was the perfect symbol of all the poor mortals whose fate it is to be just important enough to occupy a place on the stage, but to be given no speaking lines and to serve merely as background for the star performers.

But the chief object of attention was the prisoner at the bar. To many there Burr was already a well-known figure; others were seeing him for the first time. They craned their necks out of curiosity to learn what manner of man this was who had set to work to carve an empire in the Southwest and in so doing disrupt the nation. If Burr had been denied the opportunity to arrange the setting dramatically, as he had done for the impeachment proceedings against Justice Chase, he still was at liberty to give attention to his personal appearance. He had selected a suit of fine black silk and he wore his hair powdered, a picture of scrupulous neatness. His manner was calm, collected, and dignified, his mind apparently concentrated on the proceedings and indifferent to the stares of the curious. To Winfield Scott, who was watching him from the far end of the hall, he looked “as composed, as immovable as one of Canova’s living marbles.”

Impressive too was the Chief Justice. His admirers had accustomed themselves to the carelessness of his dress. They centered their attention on his majestic head, without a single gray hair, set on broad shoulders, his ruddy weather-beaten face, his dark luminous eyes approached in beauty only by the hazel eyes of Burr. It was frequently remarked during the trial that never before had two such pairs of eyes beheld each other.

Marshall’s friends spoke of him as the soul of dignity and honor, prudent, courageous, immovably resolute to do the right, “the Washington of the Bench.” Not so the champions of Jefferson. They saw him on the contrary as “suave, almost unctuous, wearing the mask of impartial benevolence” which was “to slip conspicuously more than once in the course of the trial ... revealing a partisan as malevolent as any that Jefferson ever faced.”

When the courtroom had quieted down proceedings were opened by the clerk calling the names of those who had been summoned for the Grand Jury. Burr was on his feet at once. He lost no time in making it clear that he was going to act as his own counsel. Learned in the law and thoroughly at home with court procedure he was not going to hesitate to interpose when he saw a chance to make a point in his favor. When he spoke his remarks were crisp and to the point.

Selection of the jury was now the object of his attention. Only a week before Burr had written to Theodosia: “The grand jury is composed of 20 Democrats and 4 Federalists. Among the former is W.C. Nicholas, my vindictive and avowed personal enemy—the most so that could be found in this state!” He referred to Colonel Wilson Cary Nicholas, a former member of Congress. By “the grand jury” Burr meant the panel of 24 men from whom the jury of 16 would be chosen. His immediate aim was to use every legal means to overcome the disadvantage of having the charges against him heard by a group composed chiefly of Jeffersonians and among them men he knew harbored a personal animosity toward him. He therefore begged to point out to the court that under the law the Marshal was required to summon twenty-four free-holders. But if any of them had been stricken off the list and others substituted in their places the act was illegal. He asked if such had been the case.

This afforded the first opportunity of the day for opposing counsel to warm to their task, and they debated the issue for more than an hour. At the conclusion of the arguments the Chief Justice ruled in favor of Colonel Burr and the names of the men substituted for the original twenty-four were removed.

Burr now was to exercise his right of challenge. The first juror to be dealt with was Senator Giles. It was he who, a few weeks before, in direct violation of Republican principles of the days of the Federalist alien and sedition laws, introduced the bill to suspend the writ of habeas corpus in the cases of Swartwout and Bollman and nursed it through the Senate. It was no fault of his that it met with ignominious defeat in the House.

However, in this instance he was no part of a plot to rob Burr of justice. He was there because the Marshal had called him. No sooner had Burr questioned his fitness to serve than Giles admitted prejudice and volunteered to withdraw.

Nicholas, who was questioned next, proved equally tractable. He made no attempt to conceal his dislike and suspicion of Burr. He recalled how he had opposed him when the presidential vote was thrown into the House of Representatives of which Nicholas was then a member. He declared that he had no desire to serve on the Grand Jury. But word had come to him that if he tried to withdraw an effort would be made to embarrass him by publishing certain things against his reputation. He hesitated therefore to retreat in the face of his enemies. Burr here interrupted to deny that any of his followers had made any such threat. Following this exchange Nicholas withdrew.

Joseph Eggleston, another member of the panel, did not wait to be challenged. Veteran cavalry officer who had followed Light Horse Harry Lee in the Revolution, former member of Congress and of the Virginia Assembly, he confessed that, after reading Eaton’s deposition in the newspapers, he had expressed himself with great warmth and indignation. He therefore asked to be excused.

The situation was perfectly made for Burr’s claim that it was impossible to get a fair trial in the light of the public prejudice against him. He was quick to take advantage of it.

“Under different circumstances,” he said, “I might think and act differently, but the industry which has been used through this country to prejudice my cause, leaves me very little chance indeed of an impartial jury.”

Pausing a dramatic moment for reflection he continued: “There is very little chance that I can expect a better man to try my cause. His desire to be excused, and his opinion that his mind is not entirely free upon the case, are good reasons why he should be excused; but the candor of this gentleman, in excepting himself, leaves me ground to hope that he will endeavor to be impartial.” Could the Colonel, by any chance, have been calculating that Eggleston would show him the consideration that one gallant officer of the Revolution might expect from another?

And now the name of John Randolph was called. Randolph appealed to the Court, protesting and begging to be excused, pleading that he had the impression the prisoner was guilty of the charges preferred against him. It was ridiculous to suppose that in the face of this frank admission of bias Randolph’s participation in the case would be given consideration.

But there were extenuating circumstances. Randolph’s enthusiasms and loyalties seldom lasted long. At an earlier time he had been one of the President’s most ardent hero-worshippers. Once the leader of the Jeffersonians in the House he had now broken with his party and was neither fish, flesh, fowl, nor good red herring. A master of caustic epithet he had tagged Mr. Jefferson with the name “St. Thomas of Cantingbury.” On the other hand of late he had on occasion expressed admiration for the Chief Justice. Now not only was this man with admitted prejudice against the accused to be put on the jury but the Chief Justice was to make him its foreman. And this without protest from Colonel Burr.

No wonder the Jeffersonians interpreted this as a clever move on the part of Judge Marshall to place in a key position a man who could be expected to counterbalance the strongly Jeffersonian flavor of the jury.

Politics aside, if the United States Marshal for the District of Virginia had spent a lifetime at the task of assembling a panel he could not have brought together one more representative of the best brains, blood, and ability in the Commonwealth. The descendant of Jonathan Edwards, who stood at the bar, had no reason to complain that the Grand Jury which was to pass on the charges preferred against him was not composed of his peers in the most literal sense of the term.

John Randolph and Joseph Eggleston have been mentioned. Another juryman was Joseph Carrington Cabell, brother of the Governor and a finely educated man who shortly was to collaborate with Thomas Jefferson in founding the University of Virginia. This was the Cabell whose acquaintance young Washington Irving had made in Europe.

Equally worthy in that select company were Littleton Waller Tazewell, James Barbour, and James Pleasants. All three were to be governors of Virginia, Tazewell and Barbour were to represent Virginia in the U.S. Senate, and Barbour was to enter the Cabinet of John Quincy Adams as Secretary of War.

In less spectacular company James Mercer Garnett would have been outstanding. His claims to distinction were membership in the Virginia Legislature, in the U.S. House of Representatives, and as first president of the United States Agricultural Society. For variety the jury included one banker, John Brockenbrough, who had abandoned the medical profession to become the treasurer of the Bank of Virginia. Later he was to be its president. Perhaps his rarest achievement was that he made and kept the friendship of the fickle John Randolph of Roanoke. Interestingly enough it was a boast that in this company he shared with Tazewell who also managed to hold Randolph’s affection.

Another member of the jury bore an unusual relationship to the foreman. This was Robert Barraud Taylor, of Norfolk. Years before as hot-headed youths at William and Mary College the two had a falling out which led to a challenge followed by a duel in which Taylor was wounded. He still carried in his side a slug fired from Randolph’s pistol. The record does not show that their meeting on the jury revived the animosity.

Numbered among the sixteen were Edward Pegram, member of a family prominent in Petersburg and shortly to become mayor of that busy commercial city, and John Mercer, whose family was honorably associated with Fredericksburg. There was Mumford Beverley in whose veins ran the blood of the Byrds of Westover. There was John Ambler, first cousin of the Chief Justice’s wife and a Shockoe Hill neighbor. Finally there were three jurymen who left no conspicuous public record behind them—Thomas Harrison, Alexander Shephard, and William Daniel. But they all bore good names. Looking at the sixteen chosen men as they arose from their seats and proceeded to the Grand Jury room Burr might have flattered himself that few prisoners had ever been honored with a jury of such quality.

However, it was not characteristic of Burr to acknowledge favors. Quite the contrary. He was up and addressing the Court again, this time to ask the Chief Justice to advise the jury on the admissibility of certain evidence he assumed Hay would place before them. Hay retorted that he trusted the Court would grant no indulgence, but treat Burr like any other man who had committed a crime.

Here was another chance for Burr to assume a posture of injured innocence. Rising to his feet he exclaimed: “Would to God that I did stand on the same footing with every other man. This is the first time I have been permitted to enjoy the rights of a citizen. How have I been brought hither...?”

Here the Chief Justice interrupted Burr’s soliloquy to remark that such digressions were improper. After a little more of such skirmishing between counsel Court was adjourned while all Richmond was held in suspense as to whether the Grand Jury would indict and, if so, what crimes the indictment would include. Burr may not have liked the complexion of the jury, yet he might have gone farther and fared worse.

Simultaneously with the adjournment a tall, cadaverous frontiersman was reported to be haranguing a crowd from the steps of a grocery store just off the Capitol Square, in the same breath damning Jefferson’s administration and declaring that Colonel Burr was a victim of its persecution. The name of the speaker meant little to most Richmonders, though it was already well known in Washington and in the speaker’s home state of Tennessee. The man was Andrew Jackson. What was he doing in Richmond? And why had he taken it on himself to deliver this public excoriation of Jefferson and defense of Burr?