No sooner had Mr. Buckey, the first venireman called up, been questioned than the difficulty became apparent. Asked if he had formed an opinion prior to receiving his subpoena Mr. Buckey replied that he had. Mr. Hay ventured that if the question were put to this man and every other man on the panel no jury could ever be selected in the State of Virginia. If the Court were to adopt that doctrine, he said, why then it would be the equivalent of acquitting the prisoner for want of a jury to try him.
Young Botts bristled at this remark of the District Attorney. He asked for the floor to deplore that in this country and in this case there had been such a general expression of public sentiment. However, until the gentlemen for the prosecution had avowed it Mr. Botts professed he had never doubted that twelve men might be found in Virginia capable of deciding the question with the strictest impartiality.
Judge Marshall here intervened between counsel to point out that asking a man whether he had formed an impression about Colonel Burr was too general. The impression might be so slight that it did not amount to an opinion of guilt, nor go to the extent of believing he deserved capital punishment.
Mr. Botts addressed the venireman. “Have you said that Colonel Burr was guilty of treason?” he asked. “No,” was the reply. “I only declared that the man who had acted as Colonel Burr was said to have done, deserved to be hung.” “Did you,” pursued Mr. Botts, “believe that Colonel Burr was that man?” “I did from what I had heard,” admitted Mr. Buckey. The gentleman was rejected.
So it went with venireman after venireman. A typical instance was that of Mr. Jervis Storrs. He was, he said, in the habit of reading the newspapers and could not but examine their statements relative to these transactions. If he could believe General Eaton’s assertion that the prisoner had threatened to turn Congress out of doors and assassinate the President, he had said and would still say that Colonel Burr was guilty of treason. If the letter to General Wilkinson was true, Colonel Burr had surely been guilty of something in the West that was hostile to the interests of the United States. On the whole Mr. Storrs expressed a wish not to serve on the jury.
Among the veniremen questioned was Peyton Randolph. He asked to be excused on the ground that he was a lawyer, practicing at the Richmond bar, and as such immune to jury duty. It did not seem to occur to him that he had ample reason for not serving in view of the fact that he was a son of Edmund Randolph, leading counsel for the defense. These Virginia relationships were so hopelessly intertwined that Mr. Hay, on questioning the possibility of getting twelve men in the state who had not made up their minds, might have added a doubt that it would be possible to organize a court, comprising judge, jury, and counsel, where family relationships would not endanger strict impartiality.
This circumstance was abundantly illustrated when out of the list of veniremen Colonel Edward Carrington was called to the stand. He was the Chief Justice’s brother-in-law and a devoted friend. But this connection had not stood in the way of his being subpoenaed for jury duty.
On being questioned as to his fitness to serve Colonel Carrington expressed his feelings with complete candor. He had, he admitted, formed an unfavorable opinion of the views of Colonel Burr, but it was not definitive. Some people said that Colonel Burr’s object was to invade the Spanish territories; others that it was to dismember the Union. As for himself, said Colonel Carrington, his own opinion had not become fixed.
But there was another subject connected with the trial, on which he had stated an opinion. That was on General Wilkinson’s actions in New Orleans. On the basis of what Wilkinson had been told of Burr’s activities Colonel Carrington thought the General had behaved in a proper manner and had said so publicly.
Burr himself addressed the venireman. “Have you, Colonel, any prejudice of a more settled kind and ancient date against me?”