the marshal of the district; that he will have authority to admit any person or persons to visit the confined that he may think proper; and that he will be authorised to select for the purposes aforesaid, any apartment in the penitentiary, now unoccupied, that he may deem most conducive to safety, health and con

venience.

I am, with

George Hay, Esquire.

great respect,
Sir, your obedient servant,
WM. H. CABELL.

The court then came to the following order:

In consequence of the offer made by the executive of apartments in the third story of the penitentiary and state prison, for persons who may be confined therein under the authority of the United States, and of the foregoing letter from the governor of this commonwealth, it is ordered, on the motion of the attorney for the United States, that so soon as the apartments in the third story of the public gaol and penitentiary shall be fit for the reception and safe keeping of Aaron Burr, that he be removed thereto and safely kept therein by the marshal, until the second day of August next, when he shall be brought back to the prison where he is now placed, there to be guarded în like manner as at present, until the further order of the court.

On this day the circuit court of the United States for the fifth circuit and district of Virginia was held according to adjournment.

Present the CHIEF JUSTICE of the United States:

George Hay, William Wirt, and Alexander Mac Rae, esquires, counsel for the prosecution.

The prisoner was brought into court from his apartment near the Swan tavern, to which he had been removed on Saturday.

Edmund Randolph, John Wickham, Benjamin Botts, John Baker, and Luther Martin, esquires, appeared as his counsel. The court assembled at twelve o'clock. An immense concourse of citizens attended to witness the proceedings of this important trial.

Mr. HAY observed, that he could take no steps in this business until he had ascertained, whether the witnesses summoned on the part of the United States were present; he therefore re

quested, that their names might be called over: they were more than one hundred in number. Their names were accordingly called in the following order:

*

*

*Thomas Truxtun, *Stephen Decatur, *Benjamin Stoldert, *William Eaton, William Duane, Erick Bollman, *Peter Taylor, Jacob Allbright, Charles Willie, John Graham, *Samuel Swartwout, *Julien Dupiestre, *P. H. M. Prevost, Israel Miller, *Samuel Skounten, *George Morgan, *John Morgan, Thomas Morgan, *Nicholas Perkins, Robert Spence, *George Harris, *Cyrus Jones, *Thomas Peterkin, Elias Glover, *Simeon Poole, Dudley Woodbridge, David C. Wallace, *Edmund B. Dana, James Reid, John G. Henderson, Alexander Henderson, Hugh Phelps, Jacob Dunbaugh, *Chandler Lindsley, John Mulhollon, James Knox, *William Love, David Fisk, *Thomas Hartley, Stephen S. Welch,* James Kinney, *Samuel Moxley, *Edmund P. Gaines, *Ambrose D. Smith, George Peters, Abner L. Duncan, Lewis Kerr, John A. Fort, *Benjamin H. Latrobe, Cowles Meade, Thomas Fitzpatrick, Thomas Butler, Robert A. New, Thomas T. Davis, Silas Dinsmore, Owen Aston, William Davis, E. Kibby, Theodore Brightwell, John Callier, Dr. Bennett, Earl Sproat, Robert Wallace, Walter Putnam, John Dana, Alexander Ralston, Mrs. Vanhorne, Henry Jacobs, Ransome Peale, Hamlin Hicks, Phelow Wooster, John Blair, James M'Dowell, Samuel N. Lucke Stockley D. Hayes, Samuel W. Butler, Walter C. Davidson, John Barry, Thomas H. Cushing, Nathaniel Evans, Jacob Jackson, William Piatt, William White, Jerard Brooke, Morgan Nevill, Thomas Callis, Mr. Peterson, Lieutenant Swearingen, Mr. Weaver, colonel Osmund, major M. Porter, J. B. Walback, Mr. Vanhorne, Dr. Carmichael, Dr. Alston, colonel P. Read, John Wilkins, Stephen Woolberton, David M'Key, Hugh Ailen, William Davis.

*

[Those were present whose names are printed in italics: the rest were absent. Such as have an prefixed to their names were recognised at the former meeting of the court. The rest were not. Of course, all those whose names are placed after that of Benjamin H. Latrobe have been subpoenaed since the adjournment of the court.]

Mr. HAY begged leave to mention, that he had nothing more to submit to the court this day. There were many of the witnesses, of whose places of residence he was ignorant: several had not appeared; many had been merely pointed out to him by the attorney general of the United States. He observed, that, therefore, he had not yet been able to furnish colonel Burr with a list of the witnesses, and a statement of the places of their residence, as the law requires; that, as many of those, who had been summoned and recognised, had failed to appear, he was not ready to proceed with the

trial immediately. He also informed the court, that a list of the venire had been delivered on Saturday to colonel Burr, but had since been discovered to be inaccurate. It became therefore necessary (an act of congress having directed this to be done at least three days before the trial) to deliver a correct list on this day; and of course, the trial would be postponed until the requisite time should have elapsed.

The CHIEF JUSTICE inquired then to what day it would be proper to adjourn the court.

Mr. HAY could not positively state by what day he should be able to prepare his lists.

Mr. BURR observed, that it was not very probable, that he should avail himself of any privileges which he might derive from any delay which had occurred in not furnishing him with the list of the jurors; and therefore the court might adjourn itself to any day, which was convenient to the attorney for the United States. Neither was it probable, that he should avail himself of any objections, which might be made to any incorrectness in the names of the jurors, or the places of residence, as stated in the list; unless certain circumstances might occur after the production of the list, on which he ought to found objections to it.

A short conversation then ensued upon the day of adjournment, when Mr. Burr observed, that as it would seem, in some measure, to depend upon his own consent, he should not hesitate to consent to an adjournment, provided it did not extend farther than Wednesday. Mr. Hay had no objection to that day.

Mr. HAY observed, that it might be proper to have the names of the jury called over, though not to impanel them at present. It would be premature now to impanel them, as the opposite counsel had not yet possessed a sufficient time to examine the list, and as the witnesses for the United States were not present.

The names of the jurors were accordingly called.

The names of the jurors summoned from Wood county to appear before the judges of the court of the United States, for the fifth circuit in the Virginia district, on the 3d day of August, 1807, for the trial of colonel Aaron Burr, are

Hezekiah Bucky, Jacob Beeson, James G. Laidly, William Prince, James Henderson, Nimrod Saunders, James Compton, Thomas Creel, Hamilton Morrison, Anthony Buckner, Yates S. Conwell, David Creel.

VOL. I.

Wood county, district of Virginia,

JOSEPH SCOTT, Marshal, V. D. 2 Z

List of the petit jurors for May circuit term, 1807, continued. Names of the jurors summoned from the body of the district of Virginia for the trial of colonel Aaron Burr:

John Horace Upshaw of Essex county, William Pope of Powhatan, Peyton Randolph of Richmond city, John Bowe of Hanover, John Roberts of Culpeper, Joshua Chaffin of Amelia, Jervis Storrs of Henrico, Miles Selden of ditto, Lewis Truehart of Hanover, William Yancey of Pittsylvania, Thomas Prosser of Henrico, John Staples of Albemarle, Edward C. Stanard of Albemarle, Richard B. Goode of Chesterfield, Nathaniel Selden of Henrico, Esme Smock of ditto, William Wardlaw of Richmond city, Richard E. Parker of Westmoreland, John W. Ellis of Hanover, Thomas Starke of ditto, William White of ditto, William B. Chamberlaine of Henrico, David Lambert of Richmond city, Randolph Harrison of Cumberland, William Hoomes of Caroline, Overton Anderson of Richmond city, Hugh Mercer of Spottsylvania, David Bullock of Richmond city, Jerman Baker of Cumberland, *Edward Carrington of Richmond city, Robert Haskins of Chesterfield, William R. Fleming of Goochland, George W. Smith of Richmond city, Armistead T. Mason of Loudon, Dabney Minor of Albemarle, William M'Daniel of Stafford.

JOSEPH SCOTT, Marshal, V. D. [The two whose names are marked with an * were absent: all the rest were present]

Mr. HAY then requested the marshal to deliver, as soon as possible, a correct copy of this list to the opposite counsel.

Mr. Peyton Randolph inquired, whether this were a proper opportunity for any man on that panel to state his objections to the service.

The CHIEF JUSTICE answered, that it would be better to waive any objections, until the jury were about to be impaneled.

Mr. HAY wished, such of the witnesses, as had not appeared before, to be recognised as the others had been. And accordingly Messrs. Duncan, Nevill, M'Dowell and Peters, were recognised by the clerk.

The deputy marshal was then about to adjourn the court, when Mr. BURR recalled to the recollection of the court, the motion which he had made, on a former occasion, for a subpœna duces tecum addressed to the president of the United States. That motion had been partly complied with. He wished to know of the court, whether it were not a matter of right for him to obtain a subpoena duces tecum. If it were not, he should then lay a specific motion before the court.

The CHIEF JUSTICE did not believe it to be the practice in

Virginia to obtain such a subpœna upon a mere application to the clerk. The motion must be brought before the court itself.

Mr. HAY said, that he would say nothing on this subject, until he understood the object of the application: that if it were to obtain the letter which was not formerly furnished, he would inform the opposite counsel, that he had it now among his papers, and was ready to produce it.

Mr. BURR. That is one object of the application. Another is, to obtain a certain communication from general Eaton to the president of the United States, which is mentioned in his deposition.

Mr. HAY said, that he was not certain, whether he had that communication, but believed that it was among his papers. If it were there, he would certainly produce it.

Mr. BURR.-But if, after a search, the gentleman find that he has not that paper, will he consent out of court, to issue a subpoena to the president of the United States, under the qualification I have mentioned? I wish not at the present exigency, to derange the affairs of the government, or to demand the presence of the executive officers at this place. All that I want, are certain papers.

Mr. HAY said, that he could not consent to it; he would rather that a regular application should be made for it to the

court.

Mr. BURR.-Then, sir, I shall move for a subpoena duces tecum, to the president of the United States, directing him to attend with certain papers. This subpoena will issue as in the former instance. I shall furnish the clerk with the necessary specification of the paper, which I require.

The court was then adjourned till Wednesday, twelve o'clock.

WEDNESDAY, August 5th, 1807.

The court met according to adjournment.

Present, JOHN MARSHALL, chief justice of the United States. Mr. HAY requested that the names of the witnesses might be called over, who had not appeared on Monday, and of whose arrival he was not yet informed.

The following witnesses answered to their names: Charles Willie, John Graham, Samuel Swartwout, Julien Dupiestre, P. H. M. Prevost, Israel Miller, William Eaton, George Morgan, Cyrus Jones, Simeon Poole, Dudley Woodbridge, John G. Henderson, Samuel Moxley, Ambrose D. Smith, John A. Fort, and Hugh Allen.