of it, not that the prisoner is absolutely guilty of the whole crime charged in the indictment, but that he is guilty in some of those great points, which constitute it, do also disqualify a man in the sense of the law and of the constitution from being an impartial juror? This question was adjourned yesterday for argument, and for further consideration.

It would seem to the court, that to say, that any man who had formed an opinion on any fact conducive to the final decision of the case, would therefore be considered as disqualified from serving on the jury, would exclude intelligent and observing men, whose minds were really in a situation to decide upon the whole case according to the testimony, and would perhaps be applying the letter of the rule requiring an impartial jury, with a strictness which is not necessary for the preservation of the rule itself. But if the opinion formed, be on a point so essential as to go far towards a decision of the whole case, and to have a real influence on the verdict to be rendered, the distinction between a person who has formed such an opinion, and one who has in his mind decided the whole case, appears too slight to furnish the court with solid ground for distinguishing between them. The question must always depend, on the strength and nature of the opinion which has been formed.

In the case now under consideration, the court would perhaps not consider it as a sufficient objection to a juror, that he did believe, and had said, that the prisoner at a time considerably anterior to the fact charged in the indictment, entertained treasonable designs against the United States. He may have formed this opinion and be undecided on the question, whether those designs were abandoned or prosecuted up to the time when the indictment charges the overt act to have been committed. On this point, his mind may be open to the testimony, although it would be desirable that no juror should have formed and delivered such an opinion, yet the court is inclined to think, it would not constitute sufficient cause of challenge. But if the juror have made up and declared the opinion, that to the time when the fact laid in the indictment is said to have been committed, the prisoner was prosecuting the treasonable design with which he is charged, the court considers the opinion as furnishing just cause of challenge, and cannot view the juror who has formed and delivered it as impartial, in the legal and constitutional sense of that term.

The cases put by way of illustration, appear to the court, to be strongly applicable to that under consideration. They are those of burglary, of homicide, and of passing counterfeit money, knowing it to be counterfeit; cases in which the intention and the fact combine to constitute the crime.

If, in case of homicide, where the fact of killing was admit ted or was doubtful, a juror should have made up and delivered the opinion, that, though uninformed, relative to the fact of kil ling, he was confident as to the malice; he was confident that the prisoner had deliberately formed the intention of murdering the deceased, and was prosecuting that intention up to the time of his death; or if on the charge of passing counterfeit bank notes, knowing them to be counterfeit, the juror had declared, that though uncertain as to the fact of passing the notes, he was confident that the prisoner knew them to be counterfeit, few would think such a person sufficiently impartial to try the cause according to testimony. The court considers these cases as strikingly analogous.

It has been insisted, that in Callender's case, an opinion was given different from that which is now delivered.

I acknowledge, that I had not recollected that case accurately. I had thought, that Mr. Basset had stated himself to have read the book charged as a libel, and to have formed the opinion that the publication was a libel. I find by a reference to the case itself, that I was mistaken; that Mr. Basset had not read the book, and had only said, that if it were such a book as it had been represented to him, he had no doubt of its being a libel. This was going no farther than Mr. Morris has gone, the challenge against whom has been overruled. Mr. Morris had frequently declared, that if the allegations against the prisoner were true, he was guilty, and Mr. Morris was determined to be an impartial juror.

With respect to the general question, put in Callender's case, the court considers it as the same with the general question put in this case. It was, "Have you made up and delivered the opinion, that the prisoner is guilty or innocent of the charge laid in the indictment?" That is in substance, "Have you made up and delivered the opinion that the prisoner has been guilty of publishing a false, wicked, and malicious libel, which subjects him to punishment, under the act of congress, on which he is indicted?" The same question is now substantially put. Explanatory questions are now put when they are necessary; and certainly explanatory questions might have been put in Callender's case, had they been necessary.

Had the case of Mr. Basset even been such as I thought it, had he read "The Prospect Before Us," and thought it a libel without deciding who was its author, he would have gone no further than to have formed an opinion, that certain allegations were libellous, which is not dissimilar to the opinion, that certain acts amount to treason. If, for example, a juror had said, that levying an army for the purpose of subverting the government of the United States by force, and arraying that army in a warlike manner, amounted to treason, no person could suppose

him on that account, unfit to serve on the jury. The opinion would be one in which all must concur; and so was the opinion that "The Prospect Before Us" was a libel. Without determining whether the case put by Hawkins, b. 2. ch. 43. sec. 28. be law or not, it is sufficient to observe, that this case is totally different. The opinion which is there declared to constitute no cause of challenge, is one formed by the juror on his own knowledge; in this case, the opinion is formed on report and newspaper publications.

The argument drawn from the situation of England during the rebellions of 1715 and 1745, with respect to certain prominent characters, whose situation made it a matter of universal notoriety, that they were the objects of the law, is founded entirely on the absolute necessity of the case; and the total and obvious impossibility of obtaining a jury, whose minds were not already made up. Where this necessity exists, the rule perhaps must bend to it, but the rule will bend no further than is requir ed by actual necessity. The court cannot believe, that at present, the necessity does exist. The cases bear no resemblance to each other. There has not been such open notorious war, as to force conviction on every bosom respecting the fact and the intention. It is believed, that a jury may be obtained, composed of men, who, whatever their general impressions may be, have not deliberately formed and delivered an opinion, respecting the guilt or innocence of the accused.

In reflecting on this subject, which I have done very seriously since the adjournment of yesterday, my mind has been forcibly impressed by contemplating the question precisely in its reverse. If, instead of a panel composed of gentlemen who had almost unanimously formed and publicly delivered an opinion, that the prisoner was guilty, the marshal had returned one composed of persons, who had openly and publicly maintained his innocence; who had insisted, that notwithstanding all the testimony in possession of the public, they had no doubt that his designs were perfectly innocent; who had been engaged in repeated, open, and animated altercation to prove him innocent, and that his objects were entirely opposite to those with which he was charged; would such men be proper and impartial jurors? I cannot believe they would be thought so. I am confident I should not think them so. I cannot declare a juror to be impartial, who has advanced opinions against the prisoner, which would be cause of challenge, if advanced in his favour.

The opinion of the court is, that to have made up and delivered the opinion, that the prisoner entertained the treasonable designs with which he is charged, and that he retained those designs, and was prosecuting them when the act charged in the

indictment is alleged to have been committed, is good cause of challenge.

The suspended jurymen were then called. John H. Upshaw was asked by the court, whether he conceived that the prisoner had pursued his treasonable designs to the time charged in the indictment? Mr. Upshaw answered in the affirmative. And the CHIEF JUSTICE observed, that he was not qualified to serve as a juryman.

J. Bowe, Miles Selden, Lewis Truehart, William Yancey, Thomas Prosser, Nathaniel Selden, John W. Ellis, Armistead T. Mason, and Dabney Minor were successively set aside, after having been further interrogated; because having formed an opinion as to the criminal intentions of the accused, they came within the principle of exclusion just established by the court.

Mr. HAY then moved the court to award a new venire, to consist of a sufficient number, to secure a certainty of supplying the deficient jurymen. He thought, and referred to the authority of Hawkins, in support of his opinion, that the "tales" might exceed the number of the original panel. He supposed, that one hundred and fifty would not be too few. Were it not for the expense, he would move for five hundred: that every man in the community who had read and believed general Eaton's deposition, must believe, that the accused had treasonable intentions; that as so much difficulty had already occurred in obtaining only four jurors, he was very solicitous that a sufficient number should be directed to be summoned at once.

Mr. BURR said, that he was sorry that such inferences had been made; that he thought a different conclusion ought to be drawn from the experience already had; that a very great majority of the forty-eight first summoned, had publicly and fre quently declared the most injurious opinions respecting his intentions; but when it should be manifest, that the officer of this court was really disposed to seek proper jurymen, the number could easily be completed.

Mr. WIRT hoped, that when insinuations were thrown out against the marshal of this court, a man of as respectable a character as any in the state, he might be called into court to justify himself.

Mr. WICKHAM objected to his panel; that it contained too many members of assembly, and candidates for public favour and office; that the marshal should have selected the jury from those who were less in the habit of expressing their political opinions than those gentlemen; for that, however respectable they might be, the frequent and public discussion of their opinions, had a tendency to create an involuntary bias on their minds.

Mr. BOTTS said, that it ought not to be understood, that the motives of the marshal were to be questioned; that he was a respectable man, who certainly meant to act faithfully and conscientiously.

Mr. WIRT appealed to the panel itself, as the best proof of the intelligence and integrity of those who had been selected; that they were as respectable men as any in the whole community; that it had been announced from the bench itself, that some abstruse and complicated doctrines of treason, were to be investigated during the trial; that it was therefore natural, that the marshal should have looked out for the most enlightened men, and that the selection should have comprehended some of those very persons, whom the people had before chosen, for the management of their public concerns; but as only four jurors were obtained out of the forty-eight, such a" tales" should be awarded, as would be certainly sufficient to produce the remaining eight jurors.

The CHIEF JUSTICE stated, that the difficulty of getting jurors, was now in some measure removed, as the opinion of the court was known; that the marshal would not summon a man whose opinions he might have previously understood, although he ought not to interrogate him on the subject; that he would have a good reason for not placing on the panel, any man, who should inform him, that his opinions were strongly in conflict with the test established by the court.

After some desultory conversation, the court awarded a panel of forty-eight, and adjourned till Thursday next.

THURSDAY, August 13th, 1807.

As soon as the court met, Mr. BURR observed, that just before coming into court, he had received a copy of the panel last awarded; that it was defective, in not having the places of residence annexed to the names of the jurors; that he should, perhaps, require till the day after to-morrow, to examine it, which was a less time than the law allowed him for that purpose.

Some conversation ensued, respecting the subpoena "duces tecum," when Mr. HAY stated, that he had found general Eaton's letter, among certain papers, transmitted by Mr. Rodney, and had filed it with the clerk; that he had not found among them, general Wilkinson's letter, of the 21st October, but would seek for it.

Three of the jury summoned on the second venire, were discharged by the court, viz: General Pegrom, because he was then necessarily engaged in military business; in giving the necessary orders, to the officers of his brigade, to get in readiness, its due