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.