Some conversation here ensued, between Mr. Minor and Mr. Botts, when Mr. Minor was suspended until to-morrow.

Thus, then, of the whole venire that appeared, four only were elected and sworn, and nine were suspended, till arguments should be heard on the subject, in order to aid the court, to form an opinion, whether they were competent jurymen or not.

Here a discussion of considerable length took place, on the propriety of confining or not confining, in the custody of the marshal, the jurors already sworn, till the other eight should be

sworn.

The court then decided, that there was no necessity for deli vering the jurymen, who had been, or should be sworn into the custody of the marshal, until the whole number had been impa neled and sworn.

Adjourned till Tuesday, eleven o'clock.

TUESDAY, August 11th, 1807.

The court met according to adjournment.

Present, the CHIEF JUSTICE and Judge GRIFFIN.

The CHIEF JUSTICE informed the counsel engaged in the cause, that the court was ready to hear any observations on the question before them yesterday, which they might think proper to make.

Mr. MARTIN. We are ready to say something relative to the situation that a juryman ought to be in, to enable him properly to pass upon the case of a prisoner.

Mr. George W. Smith was the first of the jurors, suspended yes terday for subsequent examination, who was called. He said, that he supposed himself entitled to exemption, from his profession as a practising lawyer in this court: that by the law of the land, as long as he behaved with respect to the court, and diligence to his client, he ought not to be obstructed in the pursuit of his professional duties: that though there was no express statute exempting him, yet he was exempted by the reason of the law.

Mr. BURR observed, that, as some real or fictitious difficulty had occurred in the selection of jurymen, he should be extreme ly sorry, if such as were impartial should object to themselves. If Mr. Smith, however, raised such objections, he himself should submit to the decision of the court, as he wished to be perfectly passive.

Mr. Smith did not know whether he deserved such an encomium on his impartiality; but as the arrangement of his professional business, in other courts, (though not in this court at this particular time) would not permit him to attend the trial

with any convenience, he should claim the privilege of exemption, to which, in his opinion, he was entitled by law.

CHIEF JUSTICE said, that this privilege would certainly exempt Mr. Smith, unless his attendance were claimed by the prisoner; and as colonel Burr waived this right, Mr. Smith was excused from attending.

James Henderson, of Wood county, who was absent yesterday, was next called; he was challenged for cause. On being examined by Mr. Botts, he admitted that he was not a freeholder, and was consequently set aside.

Mr. Hamilton Morrison was the next of the suspended jurymen who was called. He declared that it was with pain he should serve on the jury; that he did not wish to serve on it; that it was still more disagreeable to him, as the defendant seemed to have such imaginary thoughts against him; that he had not meddled with the prisoner's transactions, though perhaps he might have done so, had it been profitable to him. James Henderson and Mr. Neale were both examined as to what they might have heard him say on this subject, and both declared that they had heard him say nothing material.

Mr. BURR.-Have not these rumours excited a prejudice in your mind against me?

Answer. I have no prejudice for or against you.

Mr. BOTTS.-Are you a freeholder?

Answer. I have two patents for land.

Question. Are you worth three hundred dollars?

Answer. Yes: I have a horse here that is worth the half of it. Question. Have you another at home to make up the other half.

Answer. Yes: four of them. [Here the court said, that sufficient cause had not been shown against his being a proper juror.] I am surprised why they should be in so much terror of me. Perhaps my name may be a terror, for my first name is Hamilton.

Colonel BURR then observed, that that remark was a sufficient cause for objecting to him, and challenged him. Mr. Morrison was therefore set aside.

This was the first peremptory challenge which the prisoner made, of the thirty-five to which the law entitles him.

Thomas Creel, another of the suspended jurymen from Wood county, was next set aside by the court; because, he said, that he had both formed and expressed sentiments unfavourable to the prisoner.

John H. Upshaw was next called up. He stated, before he

was interrogated, that he had received strong impressions against colonel Burr, but that he believed he could find a verdict according to testimony.

The CHIEF JUSTICE wished to know, whether those impres sions related to the general charge of treason against the pri soner, or to what happened before, or to what circumstances?

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Mr. Upshaw answered, that they related to the transactions in the western country; and added, " my opinions have changed as the lights of evidence seemed successively to appear. It was my first impression, that he had nothing more in view than the settlement of the lands on the Waschita. I next supposed that he intended to attack Mexico; but that as a mean of effecting that object, he intended to attack New-Orleans: and last of all, that his plans were of a more complicated nature; but that he never thought, till after his leaving the mouth of Cumberland, 'that Burr had treasonable designs; but that he could not recollect particularly, the times, when he formed, or changed these opinions.

Mr. WICKHAM asked him, whether, as the result of all these impressions, he did not consider colonel Burr a dangerous man? He answered, that that was his impression.

Mr. MAC RAE.-Have you formed or delivered an opinion, that he has committed an overt act of treason, as charged in the indictment?

Answer. I have not.

Mr. MARTIN said, that he should state, whether there were any bias on his mind, although he did not believe that an overt act had been committed; for if he had such bias, he was unfit for a juryman.

Mr. BAKER. Have you not, in your own county, argued in conversation, to show, that colonel Burr was guilty, and that there was strong presumptive evidence against him?

Answer. I have done so; and not only supported such opinions, but have gone on to vindicate the propriety of the meaIsures taken by the government.

Mr. BURR said, that enough had appeared to show, that Mr. Upshaw had taken up strong prejudices against him.

Mr. HAY asked, whether such testimony as that could disqua lify him as a juryman?

Mr. Upshaw said, that he had been in the habit of impressing on others his prejudices, or opinions, that Burr was a dangerous man to the community.

Mr. MAC RAE.-I beg leave to ask, whether personally you

have any prejudices against him? Have you any other prejudice against him, except that he has entertained treasonable designs? He answered explicitly, that he had not.

Mr. BURR. Had you not, anterior to those transactions rumoured in the western country, formed an unfavourable opinion of me?

Mr. Upshaw answered, that he had before (with other persons) formed rather an unfavourable opinion against him, during the presidential election (of 1801,) though he had no positive evidence on that subject.

Here Mr. Upshaw was suspended, till the general question on the doctrine of challenges should be argued.

Mr. MARTIN rose to proceed with his argument. He stated, that it was one of the soundest principles of law, that every man had a right to be tried by an impartial jury: that this right extended to all cases, civil and criminal; but that in criminal cases it was secured by the constitution in a positive and sacred manner, so that all altercation as to the meaning of the terms was rendered unnecessary.

Mr. MAC RAE apologized for interrupting Mr. Martin, but suggested that it would be a saving of time, first, to know the objections to all the jurors, and then to have one general argument, as to all, instead of having an argument on each particular case as it might occur; that he wished to economize time, and that the experience of yesterday showed the propriety of saving time as much as possible. Evidence is now heard as to this case, and if it be argued, the court must hear arguments in the case of every other juryman: he did not see the necessity of holding twelve arguments instead of one, where the cases were precisely similar. He did not wish to prescribe to gentlemen the course of proceeding, but he really supposed that one argument would suffice for all the cases.

To this the CHIEF JUSTICE assented.

Mr. MARTIN.-I have been repeatedly interrupted by the gentlemen; and they have found out in their infinite wisdom, that we are to hold twelve arguments on this point. They talk, sir, of economy of time: they have shown a happy instance of this economy of time, when I was here on a former occasion. I know what kind of economy they wish. They wish us to be silent; they would, if they could, deprive colonel Burr's counsel of an opportunity of defending him, that they might hang him up as soon as possible, to gratify themselves and the government. VOL. I.

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Mr. MAC RAE.-That is a most unprincipled and most un founded assertion.

Mr. BURR said, that he thought the gentlemen for the prosecution were not altogether so wrong. Generally the question was whether those gentlemen who said, that they were convinced that he had treasonable intentions were impartial and properjurymen? They had avowed their conviction as to these intentions in court; that one argument would apply to all; and if the principle were once fixed, it would not be necessary to renew it in the case of each gentleman; that they had entered into the argument because they wished the principle to be settled, and then it could be applied to the particular cases.

Mr. HAY.-We wish the argument to proceed without hearing ourselves grossly insulted; without making accusations against us that are malicious and groundless. We said nothing that could give offence to the feelings of any gentleman. The gentlemen cannot say with truth, that we wish to deprive them of the right of defending their client. The charge is unjust. I wish him to have a fair trial, and justice to be done with all my heart; but I feel myself hurt, and grossly insulted, when the gen tlemen on the other side charges me with feelings that are disgraceful to humanity. I trust, therefore, that the arguments will no longer be conducted with such indecorum.

The CHIEF JUSTICE had hoped, that no such allusions would have been made; that the government ought to be treated with respect, and that there was a delicacy to be observed on that subject, from which he hoped there would be no departure hereafter.

Mr. BURR.-I rose to stop the progress of such language when up before. I had made sufficient apologies, if any were necessary, for any expressions which had been used, and I had hoped, that no allusions would have been made to the subject. It will be recollected, that I have constantly manifested my displeasure at such expressions. I have carefully avoided such myself, and imposed similar restraints on my counsel; and urged, that the government should be treated with the utmost delicacy, though there was great provocation from the gentlemen on the part of the prosecution, which would have justified harsh terms. I hope these things will cease. On the part of my counsel I am sure they will cease.

Mr. MARTIN. I have no wish to hurt the feelings of a single individual, but they have no right to hurt our feelings; and when I am so often interrupted and charged with wasting the public time, and the gentlemen still persist in their observations, I cannot repress mine.