days ago he had received a letter from colonel John Taylor, of Caroline, one of those whom he had summoned on the jury, in which he states, that a hurricane of wind had destroyed his carriage-house, and with it his carriages, so that he could not use them; and that his indisposition prevented his riding to Richmond on horseback. This letter he had laid before both their honours, and the chief justice had deemed his excuse reasonable. He had then summoned Mr. Barbour to serve in colonel Taylor's place. He had also received a letter from Mr. John Macrae, informing that he was going to leave the state for his health. He had in consequence summoned doctor Foushee in his place. The marshal added, that he felt it to be his duty to bring twenty-four jurymen into court, and acted upon this principle.

The court decided, that Mr. Barbour and Dr. Foushee, the substituted persons, were not on the grand jury.

Mr. BURR.-I understand that the panel is now reduced to sixteen, and that this is the proper time to make any other exceptions to the panel. It is with regret, that I shall now proceed to exercise the privilege of challenging for favour. In exercising this right, I shall perhaps appeal to the authority of the court to try these jurors. Lest it may be contested, it is better to setthe the principle first.

Mr. HAY, without directly contesting, called for the law to justify the application.

Mr. BURR.-Let it be distinctly understood, that I claim the same right of challenging "for favour" the grand jury, that I have of challenging the petit jury. I admit, that it is not a peremptory challenge, but that I must show good cause to support the challenge. It will be of course necessary to appoint triers to decide, and before whom the party and the witnesses to prove or disprove the favour, must appear.

Mr. BOTTS. There can be no question, that a person standing in the situation of colonel Burr, may challenge the jury for favour. In civil cases, any individual may challenge a jury for favour or partiality to his antagonist; a fortiori, it must exist in criminal cases. Mr. Botts here cited authority in support of his principle, and admitted, that the cause of challenge must be proved by testimony; that it was necessary to prevent such impurity from creeping into the commencement of this trial, as must contaminate all its subsequent stages; that no reflection against the integrity of the present jurors was intended; but in principles of plain common sense it was proper to remove every cause that might defeat the purposes justice.

of

Mr. HAY disavowed the intention of opposing substantial

exceptions, and admitted the law to be as stated by the opposite counsel.

Mr. BURR.-I shall, then, proceed to name the persons and causes of challenge. The first I shall mention is William B. Giles, against whom there are two causes of challenge. The first is a matter of some notoriety, because dependent on certain documents or records: the second is a matter of fact, which must be substantiated by witnesses. As to the first, Mr. Giles, when in the senate of the United States, had occasion to pronounce his opinion on certain documents by which I was considered to be particularly implicated. Upon those documents he advocated the propriety of suspending the writ of habeas corpus. The constitution however forbids such suspension, except in cases of invasion or insurrection, when the public safety requires it. It was therefore to be inferred, that Mr. Giles did suppose, that there was a rebellion or insurrection, and a public danger, of no common kind. It is hardly necessary to observe, that with this rebellion, and this supposed danger, I myself had been supposed to be connected. Perhaps this may be a sufficient reason to set aside Mr. Giles. But if not, I shall endeavour to establish by evidence, that he has confirmed these opinions by public declarations; that he has declared that these documents, involving me, contained guilt of the highest grade.

Mr. BOTTS.-There is no necessity of adding any thing to the observations of colonel Burr. If the right of challenge exists, the right to try the challenge exists also. But while I am up, I will declare, that no reflection is intended to be made on the character or conduct of Mr. Giles. That gentleman will be candid enough to admit, that there is not the least design to wound his feelings. It is with the utmost reluctance that colonel Burr has prevailed upon himself to advance this exception. I have authorities, however, to prove, that these two causes are sufficient to disqualify Mr. Giles. The first relates to his public, the second to his individual conduct.

Mr. HAY.-How many of the panel does the counsel mean to object to?

Mr. BOTTS.-Only two.

Mr. GILES. As to exceptions to myself personally, I can have no objection to have them tried. The court will, however, perceive the delicate situation in which I shall be placed. The triers will have to interrogate witnesses, and the result either way is ineligible. I have no objection to state to the court every impression I have ever had upon this subject. But to culling witnesses to detail loose conversations, so liable to be misunderstood, forgotten, or misrepresented, I am certainly opposed.

Mr. HAY.-I was about to make a proposition which might relieve us from all this useless embarrassment, and which might gratify the views of the accused. If the gentlemen who are challenged on the jury will consent to withdraw themselves, I can have no objection. I am content that every one who has made declarations expressive of decisive opinion, should be withdrawn from the jury. I am not disposed to spend time on such points as these.

Mr. BURR.-It will certainly save time, and I assent to the proposition.

Mr. GILES. The circumstances which have just occurred place me in an unpleasant situation. I have no objection to disclose, in the usual way, with candour, the real state of my mind in relation to the accused. But I have an objection to the introduction of witnesses to prove casual expressions, which are so liable to be misconceived. In the present state of things, expressions might be imputed to me which I never used, or expressions which I really used might be mistaken or misrepresented by the witness; or the witness might deduce inferences from my expressions which they did not justify. It was by no means agreeable to me to have been summoned on this grand jury. But for some time past I have invariably pursued this maxim: “neither to avoid nor to solicit any public appointment; but when called to the discharge of any public duty by the proper authority, conscientiously to attempt its execution." In undertaking to serve on the present grand jury, I was influenced by the same consideration. With respect to my public conduct, I presume it is of public notoriety, and will speak for itself. I not only voted for the suspension of the privilege of the writ of habeas corpus, in certain cases, but I proposed that measure. I then thought, and I still think, that the emergency demanded it; that it was fully justified by the evidence before the senate; and I now regret that the nation had not energy enough to support the senate in that measure. This opinion was formed upon the state of the evidence before the senate, which, in all questions of a general nature, is of a very different character from the legal evidence necessary in a judicial investigation. My mind is, however, free to receive impressions from judicial evidence. In relation to the accused, I feel very desirous, and have often so expressed myself, that the various transactions imputed to him should undergo a full and fair judicial investigation; and that, through that medium, they should receive their just and true character, whatever in point of fact it might be, and that he should be presented in that character to the world. I have no personal resentments against the accused; and if he has received any information inconsistent with this statement, it is not true. How

ever, as it is left to me to elect, whether to serve on the grand jury or not, I will certainly withdraw.

CHIEF-JUSTICE.-The court thinks, that if any gentleman has made up and declared his mind, it would be best for him to withdraw..

Mr. BURR.-A gentleman who has prejudged this cause, is certainly unfit to be a juryman. It would be an effort above human nature for this gentleman to divest himself of all prepos sessions. I believe his mind to be as pure and unbiassed as that of any gentleman under such circumstances. But the decisive opinion he has formed upon this subject, though in his public character, disqualifies him for a juryman. But he is one of the last men on whom I would wish to cast any reflections. So far from having any animosity against him, he would have been one of those whom I should have ranked among my personal friends. The other gentleman whom I shall challenge is Wilson Cary Nicholas.

Mr. Nicholas desired that the objections against him should be stated.

Mr. BURR. The objection is, that he has entertained a bitter personal animosity against me; and therefore I cannot expect from him that pure impartiality of mind which is necessary to a correct decision. I feel the delicacy of my situation; but if the gentleman will consent to withdraw, I will waive any further inquiry.

Colonel WILSON C. NICHOLAS rose, and addressed the court as follows:

My being in this situation certainly was not a thing of choice. When I was summoned by the marshal, I urged him in the strongest manner to excuse me. I mentioned to him, that it would be extremely inconvenient to me to attend the court, and that it would be very unpleasant to serve on the jury, on account of the various relations in which I had stood to colonel Burr. I had been in congress at the time when the attempt was made to elect colonel Burr president of the United States. My feelings and opinions on that occasion are well known. I had served three years in the senate while colonel Burr was president of that body, and was one of those who, previous to the last election, had taken a very decided part in favour of the nomination of the present vice president, for the office at that time filled by colonel Burr. Moreover, from the time that colonel Burr first went to the western country, my suspicions were very much excited as to his probable objects, in that part of the United States; in consequence of which I gave early and perhaps too great credit to the charges which were brought against VOL. I.

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him. Such was my opinion of the importance of New-Orleans, not only to the prosperity, but to the union of the states, that I felt uncommon anxiety at what I believed to be the state of our affairs in the west, and had expressed my impressions very freely in conversation, and in letters to my friends during the last winter. Under these circumstances, I doubted the propriety of my being put on the jury; but I felt no distrust of myself, as I was confident that I could discharge the duty under a just impression of what I owe to my country, to the accused, and to my own character. The marshal assured me, that he felt the strongest disposition to oblige me, but that he thought he could not do it, consistently with his duty. He supposed there was scarcely a man to be found, who had not formed and expressed opinions about colonel Burr. That he too was in a situation of great delicacy and responsibility, and that, without the utmost circumspection on his part, he would be exposed to censure. I renewed my application to the marshal several times, and always received the same answer. Thus situated, I determined to attend the court, both from a sense of duty, and because I would not put it in the power of the malicious, and those disposed to slander me, to assign motives for absenting myself, which had no kind of influence on me. Another reason for pursuing this course presented itself some time after I had formed this determination. I conceived that an attempt had been made to deter me from attending this court. I was informed by a friend in the city, that he had heard, that one of the most severe pieces which had ever been seen, was preparing for publication, if I did attend, and serve on the grand jury. From what quarter this attack was to come, I do not know. The only influence which that circumstance had, was to confirm me in the determination I had made; as I was much more inclined to defy my enemies, than to ask their mercy or forbearance. From the first I hesitated, whether I ought not to make the same representation to the court, that I had made to the marshal. As I was in doubt on the subject before I came from home, I committed to paper the substance of what I have now said, and consulted three gentlemen who were lawyers, men of honour, and my personal friends. Their advice to me was not to mention it, for they did not believe that the court would or ought to discharge me for the reasons I had mentioned. As I was in doubt myself, I determined to follow their advice, and the more readily as they seemed confident that I would not be discharged, and I was not scrupulous of acquiring, in this way, a reputation for scrupulous delicacy. I was perfectly willing, that my reputation should rest on the general tenor of my life, and did not believe that my character required such a prop. At present I feel myself embarrassed how to act. I certainly was, and am, anxious not to serve on the jury, but am unwilling to