place, only one hour before the meeting of the court. Mr. Wickham declared he could mention the case of a man who had been excused from this very panel.

Major SCOTT (the marshal.)-Name him, sir: I demand his

name.

Mr. WICKHAM declared, that he meant no imputation upon major Scott, but he would not submit to such interruptions. If no sufficient excuse is given by the absent juror, he is subject to a fine. Is it then contended, that the marshal is to judge in the place of the court? not only to relieve the person of the juror, but his property also from the fine? The words of this law are too plain to be mistaken. It admits of no latitude of construction. But if the marshal has really transcended his authority, yet I do not hesitate to declare my opinion, that he intended to discharge his duty with fidelity. It was only an error in judgment, to which all men, however well versed in the law, are liable.

Mr. HAY.-Will the court indulge me with a single additional remark? I stated before, that when the marshal found, that one of the jury whom he had before summoned could not attend, he was authorised to summon a substitute. Mr. Wickham, however, contends, that the marshal cannot summon others, after sixteen have appeared. But for what reason? Because there is, in reality, no occasion for it. The object of the law is already attained. The grand jury is complete, and it is unnecessary to take up further time, when the grand jury is legally full. But before the court convenes, how is it possible for the marshal to know how many of those summoned will attend? According to the doctrine of the opposite counsel, there may be no grand jury.

The chief justice inquired, whether the question had ever come before the state courts?

Mr. RANDOLPH.-Not, sir, to my knowledge. In nearly thirty years practice, (and a considerable part of that time I was attorney general for the commonwealth) no occasion has occurred for such an objection. I have never seen a case where it was so absolutely necessary to assert every privilege belonging to the accused, as in this. But as to the right itself, abstractedly considered, I have never hesitated a moment about its existence. It is written in broad intelligible characters. Sir, if we ever submit to these relaxations of the rights of the accused, a time may possibly come, when we may lament the precedent we have established; when men less virtuous than the present respectable marshal, shall succeed to his functions. But the question in the present case is, not what has been the prac

tice in the state courts, but what is the right? If this right has never been before asserted, it is because there never was an occasion which so imperiously demanded it as the present; because there never was such a torrent of prejudice excited against any man, before a court of justice, as against colonel Burr, and by means which we shall presently unfold.

CHIEF JUSTICE.-As this question has never been decided before the state courts, we must refer to the words of the act of assembly. There can be no doubt that this is the time when the accused has a right to take exceptions to the jury; and the only doubt can be, is this a proper exception? The marshal is authorised by law to summon twenty-four jurymen; but he is not to summon a twenty-fifth. Of course, the twenty-fifth is not legally summoned, unless he has the power to discharge a person already summoned. He has no such power, unless the jury be composed of bystanders. The twenty-four first summoned must compose the jury, sixteen of whom constitute a quorum. It follows, therefore, that no one can be on the grand jury, unless he be one of the twenty-four first summoned, or one who has been selected from the bystanders by the direction of the court. When the panel has been once completed by the marshal, its deficiencies can be supplied only from the bystanders.

The chief justice further observed, that he was not well acquainted with the practice in the state courts; but he believed the practice of sheriffs to be, to excuse a man summoned on the jury, if they are satisfied that his excuse is reasonable. So it may have been with the officer of this court, who acted, he had no doubt, with the most scrupulous regard to what he believed to be the law. That the court, however, thought the marshal had no such dispensing power. One very obvious reason against the marshal's possessing this power of substitution, is, that if a person summoned should come into court, and prove that he had been actually summoned, he certainly would be on the grand jury, if one of the twenty-four first summoned. The general principle is, that when a person is put in the panel he stands upon it, and cannot be displaced by the marshal. There is an evident distinction between actually summoning a grand juryman, and merely talking to a person about suminoning him. The court is therefore of opinion, that a person substituted in the place of one actually summoned, cannot be considered as being on the panel.

Mr. BURR.-The court having established the principle, we must ask their aid to come at the facts. We wish to know, when certain persons were summoned, when discharged, and whether other persons were substituted in their stead.

The marshal said, that he had not the least objection to state all the facts necessary to be known on this occasion. A few

days ago he had received a letter from colonel John Taylor, of Caroline, one of those whom he had summoned on the jury, in which he states, that a hurricane of wind had destroyed his carriage-house, and with it his carriages, so that he could not use them; and that his indisposition prevented his riding to Richmond on horseback. This letter he had laid before both their honours, and the chief justice had deemed his excuse reasonable. He had then summoned Mr. Barbour to serve in colonel Taylor's place. He had also received a letter from Mr. John Macrae, informing that he was going to leave the state for his health. He had in consequence summoned doctor Foushee in his place. The marshal added, that he felt it to be his duty to bring twenty-four jurymen into court, and acted upon this principle.

The court decided, that Mr. Barbour and Dr. Foushee, the substituted persons, were not on the grand jury.

Mr. BURR.-I understand that the panel is now reduced to sixteen, and that this is the proper time to make any other exceptions to the panel. It is with regret, that I shall now proceed to exercise the privilege of challenging for favour. In exercising this right, I shall perhaps appeal to the authority of the court to try these jurors. Lest it may be contested, it is better to settle the principle first.

Mr. HAY, without directly contesting, called for the law to justify the application.

Mr. BURR.-Let it be distinctly understood, that I claim the same right of challenging "for favour" the grand jury, that I have of challenging the petit jury. I admit, that it is not a peremptory challenge, but that I must show good cause to support the challenge. It will be of course necessary to appoint triers to decide, and before whom the party and the witnesses to prove or disprove the favour, must appear.

Mr. BOTTS.-There can be no question, that a person standing in the situation of colonel Burr, may challenge the jury for favour. In civil cases, any individual may challenge a jury for favour or partiality to his antagonist; a fortiori, it must exist in criminal cases. Mr. Botts here cited authority in support of his principle, and admitted, that the cause of challenge must be proved by testimony; that it was necessary to prevent such impurity from creeping into the commencement of this trial, as must contaminate all its subsequent stages; that no reflection against the integrity of the present jurors was intended; but in principles of plain common sense it was proper to remove every cause that might defeat the purposes of justice.

Mr. HAY disavowed the intention of opposing substantial

exceptions, and admitted the law to be as stated by the opposite counsel.

Mr. BURR.-I shall, then, proceed to name the persons and causes of challenge. The first I shall mention is William B. Giles, against whom there are two causes of challenge. The first is a matter of some notoriety, because dependent on certain documents or records: the second is a matter of fact, which must be substantiated by witnesses. As to the first, Mr. Giles, when in the senate of the United States, had occasion to pronounce his opinion on certain documents by which I was considered to be particularly implicated. Upon those documents he advocated the propriety of suspending the writ of habeas corpus. The constitution however forbids such suspension, except in cases of invasion or insurrection, when the public safety requires it. It was therefore to be inferred, that Mr. Giles did suppose, that there was a rebellion or insurrection, and a public danger, of no common kind. It is hardly necessary to observe, that with this rebellion, and this supposed danger, I myself had been supposed to be connected. Perhaps this may be a sufficient reason to set aside Mr. Giles. But if not, I shall endeavour to establish by evidence, that he has confirmed these opinions by public declarations; that he has declared that these documents, involving me, contained guilt of the highest grade.

Mr. BOTTS. There is no necessity of adding any thing to the observations of colonel Burr. If the right of challenge exists, the right to try the challenge exists also. But while I am up, I will declare, that no reflection is intended to be made on the character or conduct of Mr. Giles. That gentleman will be candid enough to admit, that there is not the least design to wound his feelings. It is with the utmost reluctance that colonel Burr has prevailed upon himself to advance this exception. I have authorities, however, to prove, that these two causes are sufficient to disqualify Mr. Giles. The first relates to his public, the second to his individual conduct.

Mr. HAY.-How many of the panel does the counsel mean to object to?

Mr. BOTTS.-Only two.

Mr. GILES.-As to exceptions to myself personally, I can have no objection to have them tried. The court will, however, perceive the delicate situation in which I shall be placed. The triers will have to interrogate witnesses, and the result either way is ineligible. I have no objection to state to the court every impression I have ever had upon this subject. But to culling witnesses to detail loose conversations, so liable to be misunderstood, forgotten, or misrepresented, I am certainly opposed.

Mr. HAY.-I was about to make a proposition which might relieve us from all this useless embarrassment, and which might gratify the views of the accused. If the gentlemen who are challenged on the jury will consent to withdraw themselves, I can have no objection. I am content that every one who has made declarations expressive of decisive opinion, should be withdrawn from the jury. I am not disposed to spend time on such points as these.

Mr. BURR.—It will certainly save time, and I assent to the proposition.

Mr. GILES.-The circumstances which have just occurred place me in an unpleasant situation. I have no objection to disclose, in the usual way, with candour, the real state of my mind in relation to the accused. But I have an objection to the introduction of witnesses to prove casual expressions, which are so liable to be misconceived. In the present state of things, expressions might be imputed to me which I never used, or expressions which I really used might be mistaken or misrepresented by the witness; or the witness might deduce inferences from my expressions which they did not justify. It was by no means agreeable to me to have been summoned on this grand jury. But for some time past I have invariably pursued this maxim: "neither to avoid nor to solicit any public appointment; but when called to the discharge of any public duty by the proper authority, conscientiously to attempt its execution." In undertaking to serve on the present grand jury, I was influenced by the same consideration. With respect to my public conduct, I presume it is of public notoriety, and will speak for itself. I not only voted for the suspension of the privilege of the writ of habeas corpus, in certain cases, but I proposed that measure. I then thought, and I still think, that the emergency demanded it; that it was fully justified by the evidence before the senate; and I now regret that the nation had not energy enough to support the senate in that measure. This opinion was formed upon the state of the evidence before the senate, which, in all questions of a general nature, is of very different character from the legal evidence necessary in a judicial investigation. My mind is, however, free to receive impressions from judicial evidence. In relation to the accused, I feel very desirous, and have often so expressed myself, that the various transactions imputed to him should undergo a full and fair judicial investigation; and that, through that medium, they should receive their just and true character, whatever in point of fact it might be, and that he should be presented in that character to the world. I have no personal resentments against the accused; and if he has received any information inconsistent with this statement, it is not true. How