Shout treason

by Francis F. Beirne

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.