THE TRIAL

OF

COLONEL AARON BURR.

CITY OF RICHMOND, FRIDAY, 22d May, 1807.

Court of the United States for the fifth circuit and district of Virginia.

PRESENT-JOHN MARSHALL, chief justice of the United States; and CYRUS GRIFFIN, judge of the district of Virginia.

The court was opened at half past twelve o'clock; when colonel Aaron Burr appeared, with his counsel, Messrs. Edmund Randolph, John Wickham, Benjamin Botts, and John Baker.

Counsel for the prosecution; Messrs. George Hay, district attorney, William Wirt, and Alexander Mac Rae.

The clerk having called the names of the gentlemen who had been summoned on the grand jury, Mr. Burr's counsel demanded a sight of the panel; which was shown to them: when Mr. Burr addressed the court to the following effect:

May it please the court,

BEFORE any further proceeding with regard to swearing the jury, I beg leave to remark some irregularity that has taken place in summoning part of the panel. This is the proper time to make the exception. I understand that the marshal acts not under an act of congress, but a law of the state of Virginia, by which he is required to summon twenty-four freeholders of the state to compose the grand jury. When he has summoned that number, his function is completed. He cannot on any account summon a twenty-fifth. If, therefore, it can be made to appear, that the marshal has struck off any part of the original panel, and substituted other persons in their stead, the summons is illegal. Such is the law and the dictate

of true policy; for in important cases, like the present, a different course would produce the most injurious consequences. I consider it proper to ask the marshal and his deputies, what persons they have summoned, and at what periods: whence it may be known, whether some have not been substituted in place of others struck off the panel. When we have settled this objection, I shall proceed to exceptions of a different na

Mr. BOTTS observed, that it was the 29th section of the judicial act, which refers to the state law, besides a distinct act, which enumerates other duties; that neither of these laws specified any particular mode by which marshals were to summon juries in different districts. By the first section of the Virginia act, the sheriff is to summon twenty-four freeholders, any sixteen of whom appearing are to constitute a grand jury. The first section does not state that he is to make a return, but a distinct section inflicts a penalty, if he violate the duties prescribed by the first section; that is, if he fail "to summon a grand jury, and return a panel of their names." Colonel Burr is anxious to have nothing more than a fair trial. The reports circulated, and prejudices excited against him, justify a strict attention to his rights. He therefore asks the strictest scrutiny into past and subsequent measures. An important interest is involved in the authority of the grand jury. And if there be any irregularity in the marshal's summons, it ought now to be rectified. By the act of Virginia, a sheriff, and by the act of congress a marshal, are mere ministerial officers bound to discharge certain duties. He is to summon twentyfour jurors. When that act is done, it is irrevocable, and his duty at an end. This court only possesses the authority to excuse any of those who have been summoned, and to direct the marshal to substitute others, till the necessary quorum be completed.

Mr. Botts further observed, that he had no intention of casting the slightest imputation on the marshal for his conduct in this transaction; that his honourable character placed him above suspicion, and the fault, if any, must have arisen from official misconceptions; that he did not propose to interrogate major Scott in any manner that might possibly criminate him; but that the court had a right to inquire, and, if any error was committed, to correct it. That if he was overruled in this motion, he would then crave leave of the court to produce testimony as to the facts: that he took it for granted, that if a single moment intervened between the summoning of a juror and the meeting of a court, the court alone had the power to discharge him; that with regard to the present panel it would

appear, that the marshal, after summoning one individual, had notified another to attend; in other words, he had summoned him according to the legal definition of the term "summons." That this was not the duty of the marshal; that when the original panel was complete, his duty was at an end, and he must return that very panel precisely, without any addition. What mischiefs might not result from a different practice, particularly in cases of extreme importance, where the government was concerned, since the marshal himself depended on the government for the duration of his commission?

Mr. Botts therefore contended, that the ministerial duties of a marshal ceased with the summons which he gave; and that, if the jurors did not appear, it was the privilege of the court to supply any deficiency. He cited the decision of the supreme court of the United States in the case of Marbury v. Madison, to show, that when the ministerial duties of an officer were discharged, his power necessarily ceased, and his act was irrevocable. This doctrine was of universal application in law, both in America and England. It was applicable to a sheriff, after he had served a common writ of fieri facias. If he summon a petit juryman, who fails to appear before the court, it is the right of the court alone to fine or to excuse him. Mr. Botts then concluded, that he would ask the marshal, who were the twenty-four whom he had first summoned; for that may constitute the grand jury. Every one beyond that number was illegally summoned. It was the right of colonel Burr to demand such a purgation of the panel.

Mr. HAY, the district attorney, observed, that he was not prepared to make any observations upon this question, as it was a point which he had never before had any occasion to consider; that the proposition was, however, of no great importance, since, if any of them were set aside, there would still be a sufficient number to constitute a grand jury; or the deficiency might be supplied by a new summons among the bystanders. If there were, in reality, any objection to the regularity of the summons, he was willing to accommodate the opposite counsel; that he was not certain how far it was strictly proper to interrogate, or examine into the time of summoning the different members of the panel, as he had not been very conversant with business of this kind. He was, however, content that the court should decide; and if it should be their opinion that the marshal should be interrogated, how many jurymen he had summoned, and when he had discharged them, he should feel perfectly satisfied.

Mr. WICKHAM.-Before we go into this inquiry, we declare, that we mean no personal imputation upon the respectaVOL. I.

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ble gentleman who is the marshal. His intentions were certainly pure. It is an error of judgment alone to which we object. But in the present case, where such important interests are at stake, and where such unjustifiable means have been used to prejudice the public mind against colonel Burr, it is his right to take every advantage which the law gives him. We are prepared to show, that when a person is bound in a recognisance, he has a right, at this period of the business, to come before the court with his exceptions to the grand jury; and if in any other case, why not in one of such deep importance as the present? In support of this position, Mr. Wickham cited 2 Hawkins's Pleas of the Crown, page 307, sect. 16, and 3 Bacon's Abridgment, page 725. Whether we might afterwards file a plea in abatement for the error committed, is not now to be discussed. It is colonel Burr's anxious desire, that this whole affair should terminate here, and that this grand jury may determine his case.

The chief justice called for the law of Virginia.

Mr. HAY read it.-Revised Code, page 100, sect. 2.-The construction put upon this part of the law seems to me far more rigid than sound sense warrants. By this law, the marshal is empowered to select twenty-four freeholders, legally qualified to serve on the grand jury. The officer, in many cases neces sarily ignorant of the situation of an individual, summons him to attend. The person informs him, that, from some personal misfortune, some domestic calamity, or some indispensable business, it is impossible for him to attend. We ask, whether the accurate construction of this law forbids him to summon another in his place? Where is the legal authority to prove, that when he has once summoned twenty-four jurymen, his ministerial function is at an end? The moment it appears in court, that the legal number of jurors is not present, he is to fill up his panel from the bystanders. We appeal to the candour of the opposite counsel, to point out the real distinction between the two cases. Why should the marshal have the right to fill up his panel, when it is once ascertained before the court, that some of the jurymen have not actually attended, and yet deny him the right of substituting others in the place of those he has summoned, but who, he is satisfied, before the meeting of the court, cannot attend? Instead of a difference, the two cases are strikingly parallel. What the fact was, Mr. Hay said he knew not, but he believed that some of those who were said to be substituted had not been positively summoned by the marshal, but had been merely applied to, to know whether they could attend.

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Mr. WICKHAM contended, that the counsel for the United States had not fairly met the question. There is a doubt whether colonel Burr has not a right to come forward with his exceptions now to the grand jury. As the authorities on this subject are short, he would take the liberty of reading them to the court. (He read those he before cited.) From these authorities it manifestly appears, that a person bound in a recognisance, had a right, before the grand jury were sworn, to state his exceptions to the mode of impaneling them. It is for this reason that colonel Burr has, in this stage of the business, come forward with his objections. Mr. Hay contends, that our construction of the law is more rigid than sound policy demands. But when the words of the law are obvious, why should we resort to a dubious construction?" Ita lex scripta est." But if we are to wander into the wide field of policy, how completely would it bear against the gentleman's cause! God forbid, sir, that I should utter the slightest imputation upon the character and official conduct of major Scott; they soar above suspicion. But if once the marshal, who holds his commission at the will of the government, were permitted to alter the panel as he pleased, the life of every citizen in this state would be held at his pleasure. It is therefore essentially important, that the ministerial officer should rigidly pursue the statute from which he derives his authority. And what is his duty in the present instance? He is to summon twenty-four freeholders to serve on the grand jury, any sixteen of whom may constitute a quorum. Mr. Hay had declared, that this provision was mere matter of form; for if there be not a sufficient number present to constitute a quorum, the marshal may make up to the full number twenty-four. But that is not the fact. If sixteen jurymen attend, the marshal cannot add one more. Let us then apply a suppositious case. The marshal, if notified that one of the jury whom he has summoned cannot attend, is authorised, according to Mr. Hay's doctrine, to summon a substitute. It is no impediment to the exercise of this authority, that there be the legal quorum of sixteen remaining upon the panel; he may proceed to summon substitutes till he completes the whole number twenty-four. And yet, if the case were to happen in court, the marshal would certainly have no authority to complete the whole number. Why then suppose such a difference of authority in and out of court? Why not rather suppose, that the marshal has no authority to do that out of court, which he cannot do before the court. Let us suppose another case. A grand juror has been summoned for several weeks before the meeting of the court. The bare authority of the marshal is sufficient, according to this doctrine, to excuse him from serving, and to substitute another in his