bias; but that if it were not possible from the very eircumstances of the case; if rumours had reached and prepossessed their judgments, still the court was bound to obtain as large a portion of impartiality as possible; that this was not more a principle of natural justice, than a maxim of the common law, which we have inherited from our forefathers; that the same right was secured by the constitution of the United States, which entitles every man under a criminal prosecution, to a fair trial by "an impartial jury." Can it be said, however, that any man is an impartial juryman, who has declared the prisoner to be guilty and to have deserved punishment? If it be said, that he has made up this opinion, but has not heard the testimony; such an excuse only makes the case worse; for if the man have decided upon insufficient testimony, it manifests a bias that completely disqualifies himself from the functions of a juryman. It is too general a question, to ask whether he have any impressions about colonel Burr. The impressions may be so light, that they do not amount to an opinion of guilt; nor do they go to the extent of believing, that the prisoner deserves capital punishment. With respect to Mr. Basset's opinion, it was true he had read "The Prospect before Us;" and he had declared that it was a libel; but Mr. Basset had formed no opinion about James T. Callender's being the author. It was the same principle in the present case. If a juryman were to declare that the attempt to achieve the dismemberment of the union, was treason, it would not be a complete objection or disqualification; but it would be the application of that crime to a particular individual; it would be the fixing it on Aaron Burr that would disable him from serving in this case. Let the counsel then proceed with the inquiry.

Mr. BOTTS.-Have you said that colonel Burr was guilty of

treason?

Mr. Bucky.-No. I only declared that the man who acted as colonel Burr was said to have done, deserved to be hung. Question. Did you believe, that colonel Burr was that man? Answer. I did, from what I had heard.

Mr. HAY.-I understand then, that the question proposed in Callender's case is to be overruled?

CHIEF JUSTICE.-My brother judge does not recollect whether it particularly went to the indictment or not.

JUDGE GRIFFIN.-I think the question was, "relative to the matter in issue."

Mr. HAY.-The very position that I have laid down.

CHIEF JUSTICE.-The simple question is, whether the having formed an opinion, not upon the evidence in court, but

upon common rumour, render a man incompetent to decide upon the real testimony of the case?

Mr. WIRT, (addressing Mr. Bucky.) Did I understand you to say, that you concluded upon certain rumours you had heard, that colonel Burr deserved to be hung?

Mr. Bucky.-I did.

Question. Did you believe these rumours? Answer. I did. Question. Would you, if you were a juryman, form your opinion upon such rumours? Answer. Certainly not.

Mr. MAC RAE. Did you form and express your opinion upon the question, whether an overt act of treason had been committed at Blannerhasset's island?

Answer. It was upon other rumours, and not upon that, that I had formed an opinion.

Mr. MARTIN submitted it to the court, whether he could be considered an impartial juryman.

The court decided that he ought not to be so considered and he was accordingly rejected.

James G. Laidly stated, that he had formed and expressed some opinions unfavourable to colonel Burr, that he could not pretend to decide upon the charges in the indictment, which he had not heard; that he had principally taken his opinions from newspaper statements; and that he had not, as far as he recollected, expressed an opinion, that colonel Burr deserved hanging; but that his impression was, that he was guilty. He was therefore set aside.

James Compton being challenged for cause and sworn, stated, that he had formed and expressed an opinion from hearsay, that colonel Burr was guilty of treason, and of that particular treason of which he stood charged, as far as he understood. He was rejected.

Mr. BURR observed, that as gentlemen on the part of the prosecution had expressed a willingness to have an impartial jury, they could not refuse that any juryman should state all his objections to himself; and that he had no doubt, in spite of the contrary assertions which had been made, that they could get a jury from this panel.

Hamilton Morrison upon being called, said, that he had frequently thought and declared, that colonel Burr was guilty, if the statements which he had heard were true; that he did not know whether they were so; but only thought from the great clamour which had been made, that it might be possible that they were true; that he had not passed any positive opinion; nor was he certain that he had always qualified it by saying,

"if these things were true;" that he does not recollect to have said, that colonel Burr ought to be punished, without stating at the same time, " if he were guilty." Mr. Morrison was suspended for further examination.

Yates S. Conwell had formed and expressed an opinion, from the reports he had heard, that colonel Burr must be guilty of high treason. He was accordingly set aside.

Jacob Beeson declared, that he had for some time past formed an opinion, as well from news-paper publications, as from the boats which had been built on the Ohio, that colonel Burr was guilty; and that he himself had borne arms to suppress this insurrection. He was therefore set aside, as incompetent.

William Prince declared, he had nearly the same impressions as Mr. Beeson; that he too had borne arms; as well on Blannerhasset's island, as on descending the river, in search of Blannerhasset. He was set aside in like manner.

Nimrod Saunders declared, that he had expressed an opinion previously to his being summoned on the jury, that the prisoner had been guilty of treason. He was therefore set aside as incompetent.

Thomas Creel had no declaration to make, and was challenged for cause. Upon being interrogated, he stated, that he had never asserted that the prisoner ought to be punished, that he had said, that he was a sensible man; and if there were any hole left, he would creep out of it; that he had conceived that colonel Burr had seduced Blannerhasset into some acts that were not right; that he had never positively said, that colonel Burr was guilty; that he had said, that Blannerhasset was the most blamable, because he was in good circumstances, and well off in life; whereas colonel Burr's situation was desperate, and that he had little to lose; that he had not said, that colonel Burr had directly misled Mr. Blannerhasset, but through the medium of Mrs. Blannerhasset; in short, that there was no determinate impression on his mind respecting the guilt of the prisoner.

The Chief Justice did not think, that this was sufficient to set him aside, and suspended his case for further examination. Anthony Buckner had frequently said, that the prisoner deserved to be hung. He was therefore set aside.

David Creel had formed an opinion from the statements in the newspapers, and if these were true, the prisoner was certainly guilty. He had expressed a belief that he was guilty of the charges now brought against him, and that he ought to be hanged. He was therefore rejected.

Jurors from the body of the district.

John Horace Upshaw declared, that he conceived himself to stand there as an unprejudiced juryman; for he was ready to attend to the evidence, but that as he had formed opinions hostile to the prisoner; (if opinions they can be called, which are formed from newspaper testimony,) and had, he believed, frequently expressed them; that he was unwilling to subject himself to the imputation of having prejudged the cause.

Mr. BURR.-We challenge Mr. Upshaw for cause.

Mr. HAY.-Then, sir, I most seriously apprehend that we shall have no jury at all. I solemnly believe, Mr. Upshaw is an intelligent and upright man, and can give a correct verdict on the evidence; and I will venture to assert, (whatever credit my friends on the other side will allow to my assertion,) that I myself could do justice to the accused; I believe that any man can, who is blessed with a sound judgment and integrity. We might as well enter at once a nolle prosequi, if he is to be rejected.

Mr. WICKHAM.-Then according to the gentleman's doctrine, any honest man, no matter what his impressions may be,. is a competent juryman. Is this agreeable to the principles of law? Does the gentleman mean to insinuate, that when we object to a juryman, it is for his want of honesty? No, sir, every man is subject to partialities and aversions; which may conscientiously sway his judgment. Mr. Upshaw does no doubt deem himself an impartial juryman; but Mr. Upshaw may be deceived.

After some desultory argument between Messrs. Hay and Wickham, Mr. WIRT proceeded to ask Mr. Upshaw, whether he had understood him to say, that notwithstanding the hostile impressions he had taken up from newspaper reports, these impressions had not received that determinate character which might entitle them to the name of opinions?

Answer. I have received impressions hostile to colonel Burr, and have expressed them with some warmth; but my impressions have not been induced by any thing like evidence. They were predicated on the deposition of general Eaton and the communications of general Wilkinson, to the president of the United States. I had conceived that the prisoner had been guilty of some criminal act against the public, and ought to be punished, and I believe also, that I went on further to vindicate the conduct of those gentlemen who would appear as the principal witnesses against him; and also of the government in the measures which it had taken to suppress his plans. After some

further and animated discussion on this point, Mr. Upshaw's case was suspended for subsequent examination.

William Pope declared, that his impresssions were nearly the same with those of the gentlemen, who had preceded him; that he had thought at first, from newspaper representations, that it was colonel Burr's intention to make his fortune in the west by the settlement of lands; that when he had afterwards understood that he had formed a union with Wilkinson to proceed to Mexico he had regarded the prisoner's conduct in such a light, that if he had proceeded to Mexico he would have considered it as an excusable offence, but when he had afterwards understood that there was treason mixed with his projects, it was impossible for him to view his conduct without the deepest indignation; if these impressions could be called prejudices, he trusted that he should always retain them; what other sentiments could he feel against such a crime perpetrated against the very best government on the surface of the earth? But Mr. Pope declared that from his heart he believed, that he could divest himself of these unfavourable impressions, and give colonel Burr a fair and honourable trial. He would add, that in pursuance of the spirit manifested by the constitution which required two witnesses to an overt act of treason; he should think it necessary, that the evidence for the United States, should be so strong as to make the scale preponderate.

Mr. WICKHAM.-You will not misunderstand me, Mr. Pope, when I ask you whether you have not been a candidate for your county, and whether you be not now a delegate?

Answer. Yes.

Question. In canvassing among the people, have you not declared, that the government had acted properly in commencing this prosecution?

Answer. Yes; I believe I have said generally, that I thought colonel Burr was guilty of high treason. Mr. Pope was there fore set aside.

Peyton Randolph declared, that it had never been his wish or intention to shrink from the discharge of a public duty; but that he had peculiar objections to serve on this occasion; one of which only, he should state. He had been enrolled and was qualified as a lawyer in this court; and he would submit it to the court, whether this did not exempt, if not disqualify him from serving?

CHIEF JUSTICE admitted Mr. Randolph's privilege, unless there were an express interposition on the part of the prisoner, to retain him and others of the venire who had privileges; for this would call a conflicting privilege into operation.