As to the point before the court, what I am about to adduce will show unequivocally, that these gentlemen are not proper jurymen. The emphatic language of the constitution is, that jurors shall be free from all bias and prejudice. The constitution of the United States requires, that every criminal shall be tried by an "impartial jury;" that is, a jury that must be perfectly indifferent, and have no prejudice whatever on their minds; that every juror shall receive his impressions from the evidence which shall be adduced in legal form, and under the sanction of an oath. But those gentlemen come with minds already prepossessed against the prisoner, and it will require stronger evidence to eradicate those previous impressions; whereas, according to the constitution, there ought to be no impression against a criminal, except what arises from the facts proved against him in court, according to the rules of law on the subject. To this effect, I will take the liberty of reading Reeves' History of the English Law, vol. 1. p. 329. to show the rigid impartiality required by the law of England. [Here Mr. Martin read it.]

Every objection that is valid against a juryman is valid against a witness, but not vice versa. The credibility of a witness may be questioned though he be admitted to be sworn, but a juror must be free from every objection; exempt from every thing that may possibly give a bias to his mind or judg ment. He must have no enmity against, or friendship with the party, whose cause he is to try. That even a great or particular familiarity, or being constantly at the same table with him, will disqualify him from being a juror. See 2d vol. Reeve's English Law, p. 446. The general principles herein stated, show how particu larly cautious the law is, that jurors should, in all cases be free from all impressions and influence, and not liable to be suspected. In confirmation of this doctrine, I will refer your honours to Care's English Liberties, p. 245. a work of very considerable merit. He states here the great benefits of the trial by jury; that "no man's life shall be touched for any crime whatsoever till found guilty on two trials; that no person shall suffer death but by the verdicts of twice twelve men against him, or two juries: one to find the bill or charge to be true, and the other on the merits, to decide on full and legal proof, adduced on both sides, all of which jurors must be honest, substantial, impartial men." In page 248. he tells us what he means by an impartial man: "that he ought to be least suspicious, that is, to be indifferent as he stands unsworn;" that his mind should be free from every cause of suspicion. In page 249. the author is still more explicit. Among other qualities, he says, "that jurors must be free of and from all manner of ffections, relations and prejudices." This is a general proposition extending to all cases

whatsoever, civil as well as criminal; and if a man to be a proper juror, must be divested of all affection for, and all relationship to, the parties in a civil case, how much more essential is it that he should be in this situation in a case of life and death? He must be also "free from all prejudices," and come inte court in that situation; that all his impressions are to be received from legal evidence, delivered in open court, under the sanction of an oath. His mind must be totally indifferent in every respect. As to the idea of a person charged being guilty or innocent, it is one of the most sacred as well as humane maxims of the law, that it presumes every man to be innocent, till an impression by the evidence is made on the minds of the jurors to remove that presumption. I do not understand this quartering and halving of prejudices, and partialities. It is not sufficient that one man should have only a quarter of the prepossession of another; or that this man should only have one half, or three fifths, or four sevenths of the prejudice of that; but the law requires, that he shall not be biassed at all; that he shall be perfectly impartial. The constitution has secured to us a privilege so sacred, that no law, nor this court of justice can take it from us. Sir, so jealous were the citizens of the United States of their rights, that they were dissatisfied with the constitution in its original form, because it did not expressly provide, that there should be a trial of every offence" by an impartial jury." They therefore chose to have it secured by the constitution, so that there should be no possibility of being deprived of an "impartial jury-trial." The eighth amendment of the constitution provides, that " in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed."

This provision in the constitution, which secures this sacred right, is binding on every judge, sitting on the trial of every criminal. It forbids him to force upon him any juror that is not perfectly indifferent. Gentlemen may say, that we must take such men or have no trial at all. Gentlemen do not understand the subject correctly. They take it for granted, that colonel Burr must be tried at all events, and hung, if an impartial jury cannot be had! But I contend, that if an impartial jury cannot be found to try him, he cannot be tried at all: because the constitution says, that he "shall be tried by an impartial jury." But I do not believe what has been said, that an impartial jury cannot be found in Virginia! I have no doubt, that many impartial juries can be found in Virginia. The plea of necessity of trial insisted on by the gentlemen is not founded on fact. I can see no such necessity as to render it compulsory on the court to try him in any event, whether an impartial jury

can be obtained or not: because the constitution on the contrary declares, that no person shall be tried till he can be tried "by an impartial jury." But let us see what has been done in such cases in that country from which we have derived our system of laws. It is not thought necessary there, that a man shall be tried by a partial jury, rather than that he should not be tried at all. 2d Mac Nally, p. 667. a trial was put off on an affidavit, that the public mind was so prejudiced by recent publications, as to prevent a fair trial: because those publications had so poisoned the public mind, that a fair trial by an impartial jury could not be obtained. To the same effect, and in the same page is the case of the King v. the Dean of St. Asaph, and the case of the King v. Robinson, Brooks, and others, where the court thought it correct to decide, that the trial should be postponed till another term, lest certain recent publications, giving an imperfect statement of the evidence, should influence the public mind. If such be the humanity of the law, that it requires that jurymen shall be selected from the public, who are without bias, and persons were deemed improper jurymen in that case, on account of a trifling and temporary bias produced by such publications, how much stronger is the objection against a man being a juryman, who has had a bias on his mind for years and declared that bias? In that case, there was propriety in putting off the trial, because of the impossibility of selecting a proper jury at that time, out of that public whose minds had been poisoned by the publications.

On the present occasion let us examine the situation of the gentlemen called to serve as a jury. They are to determine on the guilt or innocence of the accused, arising from, and depending on certain transactions in the western country. Do they come hither with a bias, or do they come perfectly indifferent as to the innocence or criminality of colonel Burr? The crime consists in intention and act. The intention constitutes the most important part of the crime. The act of itself may be innocent; but treasonable views or designs annex guilt to it. These gentlemen say, "We are perfectly satisfied as to the treasonable intentions, designs and purposes of the accused." To have believed that his purposes were immoral or dangerous, would suffice to exclude them from serving on the jury, because the court is to give a name to these crimes; but when they go so far as to assert, that his designs were treasonable, the objection against them is stronger. When they come forward with a full conviction on their minds, that he has been engaged in practices dangerous to the community, do they come forward with impartial unbiassed minds? Their minds are already half made up, and that half the most material part. Twenty or thirty men on Blannerhasset's island, and eight or ten of them armed,

may have been perfectly innocent, as if they came together with an intention to shoot game, or for any other lawful and innocent purpose. The witnesses may tell them "We have not a thought that he has committed treason, or that his mind had treasonable designs; we know of no evidence to that effect." But what do these gentlemen say? That they have come to hear witnesses prove such and such acts, for they have already settled the intention in their own minds to be treasonable. What do the constitution, and common reason, and common justice require? Certainly that a juryman must be free from impressions both as to the intention of the accused, and as to the act. The inten tion constitutes the most important part of the crime; and their minds ought to be as free from impressions as to the intention as they ought to be as to the act. But it may be said, that they do not consider, that he did the act at Blanuerhasset's island; but your honour does know, that it has been said, and it will be again said, that if the act be done at the persuasion of colonel Burr, it must be considered as committed by him. Let me familiarize this case with the common case of burglary, which is the crime of breaking and entering a house in the night time with an intention to steal. Suppose a person is charged with the crime of burglary, and a juryman called to act on his trial says, that he has his mind perfectly made up that the person indicted intended to steal; but, that he is not sure that he got into the house. Then it is proved that he did enter the house, and the only question is, with what intent he did enter the house? (because he may have gone in with a mind perfectly innocent, without intending to take any thing.) Could such a juryman be truly said to be impartial? Most certainly he could not. When a man is indicted for burglary, the juror to try him must be as free from the belief that he intended to commit bur glary, as that he went into the house. He must be free from every impression when he comes to be sworn. These observa tions I have made to show, that on principles of common law and justice, every jury man in every case, especially in criminal cases, ought to be without any prejudice. How can they be said to be free from prejudice who say, that they believe that colonel Burr had treasonable designs? Do they not come with minds ready to listen to whatever may confirm his guilt? and will they not listen with great reluctance to arguments used to drive away their prejudices from their minds? It is to be lamented, that the public mind is in the state which gentlemen have described, but it certainly is not so to the extent which is represented. I do not consider the forty-eight gentlemen, who have been summoned, as an accurate specimen of the people of Virginia. To the honour of this populous state, I will say, that I believe that a great many impartial juries might be selected, and I should think it strange

if one out of a hundred had imbibed prejudices. It implies some degree of malice in any man, judge or juryman, to suffer his mind to be thus poisoned against a person accused, when the law presumes his innocence. How came these impressions to be on the public mind? Did we busy ourselves to mislead or influence it? Was not the Alexandria Expositor and other papers, under the influence of our rulers at Washington, constantly occupied in throwing out dark hints on this subject, long before the proclamation of the president appeared? Have not great pains been taken by inflammatory publications to impress the minds of the people with a belief of his guilt? Those who have done it have to answer for it; and if they have created such a prejudice, that colonel Burr cannot be rightly tried, they alone are to blame. I am sure, that the respectable gentleman on the other side, (though I do not charge him with having done so designedly,) has contributed to increase this prejudice, Has he not frequently declared himself satisfied of the guilt of colonel Burr? The zeal which he has manifested in the prosecution was well calculated to create prepossessions, as he must be presumed to be well acquainted with the evidence against him. When gentlemen, who have set their hearts on the success of the prosecution declare, that they have no doubt of his guilt, other people will be misled by their declarations, and conclude that he is guilty. I submit the case to the court, and have no doubt those jurymen will be deemed improper to serve on this jury, because the constitution requires, that the mind of a juror shall be as free from bias, as if he had never heard any thing of the cause before. Can the gentlemen conscientiously say, that they stand indifferent? Can the court say so? But if they be excluded from serving, it is not the court which says, that they shall not be sworn on this jury, but the constitution of our country which prescribes, that every person accused "shall be tried by an impartial jury."

Mr. BOTTS observed, that every crime consisted of a great many constituent parts; and that the question was, when a crime was analysed, and a juryman confessed, that he had made up his mind. on a number of those component parts, and said, that there were two or three of those parts out of a multitude upon which he had not committed himself, could such a man be regarded as impartial in the subject he is to investigate? Is he, said Mr. Botts, without bias on the question? Is he free from prejudice? The man who has made up his mind on part of the crime, is not without a bias and some degree of predetermination. What portion of the crime the intention may make, cannot be exactly computed; but it is, at least, an important feature of it. Fix on twelve jurors who have made up their minds as to the intention, and you deprive us of half of our defence. We have a right to