appear, that the marshal, after summoning one individual, hád notified another to attend; in other words, he had summoned him according to the legal definition of the term "summons." That this was not the duty of the marshal; that when the original panel was complete, his duty was at an end, and he must return that very panel precisely, without any addition. What mischiefs might not result from a different practice, particularly in cases of extreme importance, where the government was concerned, since the marshal himself depended on the government for the duration of his commission?

Mr. Botts therefore contended, that the ministerial duties of a marshal ceased with the summons which he gave; and that, if the jurors did not appear, it was the privilege of the court to supply any deficiency. He cited the decision of the supreme court of the United States in the case of Marbury v. Madison, to show, that when the ministerial duties of an officer were discharged, his power necessarily ceased, and his act was irrevocable. This doctrine was of universal application in law, both in America and England. It was applicable to a sheriff, after he had served a common writ of fieri facias. If he summon a petit juryman, who fails to appear before the court, it is the right of the court alone to fine or to excuse him. Mr. Botts then concluded, that he would ask the marshal, who were the twenty-four whom he had first summoned; for that may constitute the grand jury. Every one beyond that number was illegally summoned. It was the right of colonel Burr to demand such a purgation of the panel.

Mr. HAY, the district attorney, observed, that he was not prepared to make any observations upon this question, as it was a point which he had never before had any occasion to consider; that the proposition was, however, of no great importance, since, if any of them were set aside, there would still be a sufficient number to constitute a grand jury; or the deficiency might be supplied by a new summons among the bystanders. If there were, in reality, any objection to the regularity of the summons, he was willing to accommodate the opposite counsel; that he was not certain how far it was strictly proper to interrogate, or examine into the time of summoning the different members of the panel, as he had not been very conversant with business of this kind. He was, however, content that the court should decide; and if it should be their opinion that the marshal should be interrogated, how many jurymen he had summoned, and when he had discharged them, he should feel perfectly satisfied.

Mr. WICKHAM.-Before we go into this inquiry, we declare, that we mean no personal imputation upon the respecta VOL. I.

E

ble gentleman who is the marshal. His intentions were certainly pure. It is an error of judgment alone to which we object. But in the present case, where such important interests are at stake, and where such unjustifiable means have been used to prejudice the public mind against colonel Burr, it is his right to take every advantage which the law gives him. We are prepared to show, that when a person is bound in a recognisance, he has a right, at this period of the business, to come before the court with his exceptions to the grand jury; and if in any other case, why not in one of such deep importance as the present? In support of this position, Mr. Wickham cited 2 Hawkins's Pleas of the Crown, page 307, sect. 16, and 3 Bacon's Abridgment, page 725. Whether we might afterwards file a plea in abatement for the error committed, is not now to be discussed. It is colonel Burr's anxious desire, that this whole affair should terminate here, and that this grand jury may determine his case.

The chief justice called for the law of Virginia.

Mr. HAY read it.-Revised Code, page 100, sect. 2.-The construction put upon this part of the law seems to me far more rigid than sound sense warrants. By this law, the marshal is empowered to select twenty-four freeholders, legally qualified to serve on the grand jury. The officer, in many cases necessarily ignorant of the situation of an individual, summons him to attend. The person informs him, that, from some personal misfortune, some domestic calamity, or some indispensable business, it is impossible for him to attend. We ask, whether the accurate construction of this law forbids him to summon another in his place? Where is the legal authority to prove, that when he has once summoned twenty-four jurymen, his ministerial function is at an end? The moment it appears in court, that the legal number of jurors is not present, he is to fill up his panel from the bystanders. We appeal to the candour of the opposite counsel, to point out the real distinction between the two cases. Why should the marshal have the right to fill up his panel, when it is once ascertained before the court, that some of the jurymen have not actually attended, and yet deny him the right of substituting others in the place of those he has summoned, but who, he is satisfied, before the meeting of the court, cannot attend? Instead of a difference, the two cases are strikingly parallel. What the fact was, Mr. Hay said he knew not, but he believed that some of those who were said to be substituted had not been positively summoned by the marshal, but had been merely applied to, to know whether they could attend.

Mr. WICKHAM contended, that the counsel for the United States had not fairly met the question. There is a doubt whether colonel Burr has not a right to come forward with his exceptions now to the grand jury. As the authorities on this subject are short, he would take the liberty of reading them to the court. (He read those he before cited.) From these authorities it manifestly appears, that a person bound in a recognisance, had a right, before the grand jury were sworn, to state his exceptions to the mode of impaneling them. It is for this reason that colonel Burr has, in this stage of the business, come forward with his objections. Mr. Hay contends, that our construction of the law is more rigid than sound policy demands. But when the words of the law are obvious, why should we resort to a dubious construction? "Ita lex scripta est." But if we are to wander into the wide field of policy, how completely would it bear against the gentleman's cause! God forbid, sir, that I should utter the slightest imputation upon the character and official conduct of major Scott; they soar above suspicion. But if once the marshal, who holds his commission at the will of the government, were permitted to alter the panel as he pleased, the life of every citizen in this state would be held at his pleasure. It is therefore essentially important, that the ministerial officer should rigidly pursue the statute from which he derives his authority. And what is his duty in the present instance? He is to summon twenty-four freeholders to serve on the grand jury, any sixteen of whom may constitute a quorum. Mr. Hay had declared, that this provision was mere matter of form; for if there be not a sufficient number present to constitute a quorum, the marshal may make up to the full number twenty-four. But that is not the fact. If sixteen jurymen attend, the marshal cannot add one more. Let us then apply a suppositious case. The marshal, if notified that one of the jury whom he has summoned cannot attend, is authorised, according to Mr. Hay's doctrine, to summon a substitute. It is no impediment to the exercise of this authority, that there be the legal quorum of sixteen remaining upon the panel; he may proceed to summon substitutes till he completes the whole number twenty-four. And yet, if the case were to happen in court, the marshal would certainly have no authority to complete the whole number. Why then suppose such a difference of authority in and out of court? Why not rather suppose, that the marshal has no authority to do that out of court, which he cannot do before the court. Let us suppose another case. A grand juror has been summoned for several weeks before the meeting of the court. The bare authority of the marshal is sufficient, according to this doctrine, to excuse him from serving, and to substitute another in his

place, only one hour before the meeting of the court. Mr. Wickham declared he could mention the case of a man who had been excused from this very panel.

Major SCOTT (the marshal.)-Name him, sir: I demand his

name.

Mr. WICKHAM declared, that he meant no imputation upon major Scott, but he would not submit to such interruptions. If no sufficient excuse is given by the absent juror, he is subject to a fine. Is it then contended, that the marshal is to judge in the place of the court? not only to relieve the person of the juror, but his property also from the fine? The words of this law are too plain to be mistaken. It admits of no latitude of construction. But if the marshal has really transcended his authority, yet I do not hesitate to declare my opinion, that he intended to discharge his duty with fidelity. It was only an error in judgment, to which all men, however well versed in the law, are liable.

Mr. HAY.-Will the court indulge me with a single additional remark? I stated before, that when the marshal found, that one of the jury whom he had before summoned could not attend, he was authorised to summon a substitute. Mr. Wickham, however, contends, that the marshal cannot summon others, after sixteen have appeared. But for what reason? Because there is, in reality, no occasion for it. The object of the law is already attained. The grand jury is complete, and it is unnecessary to take up further time, when the grand jury is legally full. But before the court convenes, how is it possible for the marshal to know how many of those summoned will attend? According to the doctrine of the opposite counsel, there may be no grand jury.

The chief justice inquired, whether the question had ever come before the state courts?

Mr. RANDOLPH.-Not, sir, to my knowledge. In nearly thirty years practice, (and a considerable part of that time I was attorney general for the commonwealth) no occasion has occurred for such an objection. I have never seen a case where it was so absolutely necessary to assert every privilege belonging to the accused, as in this. But as to the right itself, abstractedly considered, I have never hesitated a moment about its existence. It is written in broad intelligible characters. Sir, if we ever submit to these relaxations of the rights of the accused, a time may possibly come, when we may lament the precedent we have established; when men less virtuous than the present respectable marshal, shall succeed to his functions. But the question in the present case is, not what has been the prac

tice in the state courts, but what is the right? If this right has never been before asserted, it is because there never was an occasion which so imperiously demanded it as the present; because there never was such a torrent of prejudice excited against any man, before a court of justice, as against colonel Burr, and by means which we shall presently unfold.

CHIEF JUSTICE.-As this question has never been decided before the state courts, we must refer to the words of the act of assembly. There can be no doubt that this is the time when the accused has a right to take exceptions to the jury; and the only doubt can be, is this a proper exception? The marshal is authorised by law to summon twenty-four jurymen; but he is not to summon a twenty-fifth. Of course, the twenty-fifth is not legally summoned, unless he has the power to discharge a person already summoned. He has no such power, unless the jury be composed of bystanders. The twenty-four first summoned must compose the jury, sixteen of whom constitute a quorum. It follows, therefore, that no one can be on the grand jury, unless he be one of the twenty-four first summoned, or one who has been selected from the bystanders by the direction of the court. When the panel has been once completed by the marshal, its deficiencies can be supplied only from the bystanders.

The chief justice further observed, that he was not well acquainted with the practice in the state courts; but he believed the practice of sheriffs to be, to excuse a man summoned on the jury, if they are satisfied that his excuse is reasonable. So it may have been with the officer of this court, who acted, he had no doubt, with the most scrupulous regard to what he believed to be the law. That the court, however, thought the marshal had no such dispensing power. One very obvious reason against the marshal's possessing this power of substitution, is, that if a person summoned should come into court, and prove that he had been actually summoned, he certainly would be on the grand jury, if one of the twenty-four first summoned. The general principle is, that when a person is put in the panel he stands upon it, and cannot be displaced by the marshal. There is an evident distinction between actually summoning a grand juryman, and merely talking to a person about summoning him. The court is therefore of opinion, that a person substituted in the place of one actually summoned, cannot be considered as being on the panel.

Mr. BURR.-The court having established the principle, we must ask their aid to come at the facts. We wish to know, when certain persons were summoned, when discharged, and whether other persons were substituted in their stead.

The marshal said, that he had not the least objection to state all the facts necessary to be known on this occasion.

A few