John W. Ellis said, that he had no doubt that the prisoner had been guilty of having treasonable designs; whether he had proceeded to acts, he had doubt. He was suspended.

Thomas Starke, without any expectations of being summoned as a juryman, had stated his opinion to his neighbours, who had asked him questions on the subject, that colonel Burr had been guilty of high treason. He was set aside.

William White stated, that he had been in the western country, in May last; and from colonel Burr's character and from the representations he had received of his conduct, he had been induced to say, that he was guilty of treason, and that he ought to be hanged, or that hanging was too good for him. He was set aside.

William B. Chamberlaine stated, that he stood in a very peculiar situation; if, as Mr. Wickham declared, any man were unfit to be a juryman who had asserted colonel Burr to have been worthy of death; he was ready to confess that he himself came under this restriction. He had said, uniformly, that he had treasonable designs; but he did not now believe that colonel Burr had committed an overt act of treason; though he believed him to be guilty of the intention. He however believed that he could do him justice; and that he could conscientiously pass between him and his country. He was rejected.

David Lambert wished to be excused on account of his indisposition; but the court rejected his plea. On being interrogated, he declared, that he did not recollect to have formed an opinion, for or against colonel Burr. He was elected.

William Hoomes had no hesitation in saying, that he had often declared his opinion, that colonel Burr was guilty of treasonable intentions, and perhaps he might say, of treason itself. He had imbibed his impressions from every thing he had seen, heard or read. He had understood that colonel Burr's counsel had made preparations to prove, that he had disqualified himself, by his own declarations. He should thank them to develop their objections.

Mr. BURR-I assure you, sir, no such preparation has been made. He was set aside.

24. Overton Anderson said, that he had often expressed an opinion, that colonel Burr's views were inimical to the United States; these opinions he had principally formed upon newspaper statements; he did not recollect that he had ever asserted him to be guilty of treason; but he had sometimes given credit to the representations, which he had heard, without particularly defining the degree of guilt in which they might involve the pri

soner; and thought him guilty of the charge against him, though he would not say it was treason. He was rejected.

Hugh Mercer, upon being called, said, that it was his duty to state, that an opinion, which he had for some time past entertained, of the character of colonel Burr, was unfriendly to a strictly impartial inquiry, into his case; that he was entirely uninformed as to the testimony which would be introduced, and that he did not recollect to have ever expressed a positive opinion, either as to his guilt or innocence. He was elected.

Jerman Baker had entertained opinions unfavourable to Aaron Burr, which he had repeatedly expressed. He had spoken them with warmth, for it was his nature to be warm. He had no doubt, that the prisoner had formed very unfriendly designs against the United States; but from his ignorance of the evidence, he could not venture to say, that they had ripened into an

overt act.

Mr. BURR.-What opinion have you formed of me?

Answer. A very bad one; which I have expressed often when called upon; and often when not. He was set aside.

Edward Carrington, next called, said, that he had formed an unfavourable opinion of the views of colonel Burr; but these opinions were not definitive. Some had said, that colonel Burr's object was to invade the Spanish territories; others, that it was to dismember the union: his own opinion had not been definitely fixed. There was another subject connected with this trial, on which he had also expressed his opinions; and that related to the measures taken at New-Orleans. His own opinion had been, that it was impossible for any one at this remote scene, to determine upon the state of affairs in that city; but if general Wilkinson did seriously believe what he said had been represented to him as the views of colonel Burr, that he ought to consider it as an extreme case, and take extreme measures, and act somewhat in the manner that general Wilkinson had done. This has been the state of his mind for twelve months.

Mr. BURR.-Have you, colonel, any prejudice of a more settled kind and ancient date against me?

Colonel Carrington.-None at all.

Mr. BURR.-He is elected."

Mr. Parker said, that perhaps he had been misunderstood by the court, and colonel Burr; perhaps he was disqualified, and he wished to be distinctly understood. He said, that he had expressed no deliberate opinion on the subject, yet he had believed, that colonel Burr had some designs contrary to the interest of the United States; that he had formed no opinion of the truth

of those depositions, but if they were true, his designs were treasonable. Mr. Parker was returned as a juror.

The four jurymen that had been elected, were then called to the book, and sworn, viz. Messrs. Parker, Lambert, Mercer, and Carrington.

Robert Haskins had expressed an opinion, that colonel Burr was guilty; but does not recollect to what extent he went. He went so far as to say, he was guilty of an intention of treason, but not of an overt act. He might have said, that he deserved to be hung. He was set aside.

William R. Fleming had formed, and frequently expressed, an opinion, that colonel Burr was guilty of treasonable intentions; and might have made a general declaration, not only as to intentions, but to acts. He was set aside.

George W. Smith suggested a right to the same exemption, which had been granted to Mr. P. Randolph. The court said, that this privilege would be incontestible, unless the prisoner should urge his conflicting privilege. Mr. Burr then requested Mr. Smith, to attend to-morrow. Mr. Smith wished to be excused, as he had some important business in another court, to attend to. He should, however, attend on the trial to-morrow; but it might now be proper to state the general impressions which he had received, from these transactions. He had generally been solicitous to avoid an expression of his opinions; and as in such cases, where the government commences a prosecution against an individual, there is always a preponderance of prejudice against him; he himself, had not only been solicitous, not to declare, but even not to form, an opinion. No one can, however, avoid reading representations of these things, in the public papers: and he had formed, and declared, his impressions, that colonel Burr had entertained designs, offensive to the peace and laws of the United States. What was the species of guilt, he had not pretended to define; but he had concluded from the newspaper reports, and the testimony which he had heard in the other end of the capitol, that his designs were of a military nature, and that they might amount, at least, to a misdemeanor. He was suspended for further consideration.

31. Armistead T. Mason had formed no deliberate opinion, in regard to the actual commission of treason. But it was his deliberate opinion, that colonel Burr had designed, if not to subvert the government, at least to divide the country. He was suspended for further consideration.

32. Dabney Minor had often said, that colonel Burr's intentions were unfriendly to the United States; that he had said, that if he were guilty of what was charged against him, he ought to be hanged; but had heard no positive testimony.

Some conversation here ensued, between Mr. Minor and Mr. Botts, when Mr. Minor was suspended until to-morrow.

Thus, then, of the whole venire that appeared, four only were elected and sworn, and nine were suspended, till arguments should be heard on the subject, in order to aid the court, to form an opinion, whether they were competent jurymen or not.

Here a discussion of considerable length took place, on the propriety of confining or not confining, in the custody of the marshal, the jurors already sworn, till the other eight should be

sworn.

The court then decided, that there was no necessity for delivering the jurymen, who had been, or should be sworn into the custody of the marshal, until the whole number had been impaneled and sworn.

Adjourned till Tuesday, eleven o'clock.

TUESDAY, August 11th, 1807.

The court met according to adjournment.

Present, the CHIEF JUSTICE and Judge GRIFFIN.

The CHIEF JUSTICE informed the counsel engaged in the cause, that the court was ready to hear any observations on the question before them yesterday, which they might think proper

to make.

Mr. MARTIN. We are ready to say something relative to the situation that a juryman ought to be in, to enable him properly to pass upon the case of a prisoner.

Mr. George W. Smith was the first of the jurors, suspended yesterday for subsequent examination, who was called. He said, that he supposed himself entitled to exemption, from his profession as a practising lawyer in this court: that by the law of the land, as long as he behaved with respect to the court, and diligence to his client, he ought not to be obstructed in the pursuit of his professional duties: that though there was no express statute exempting him, yet he was exempted by the reason of the law.

Mr. BURR observed, that, as some real or fictitious difficulty had occurred in the selection of jurymen, he should be extremely sorry, if such as were impartial should object to themselves. If Mr. Smith, however, raised such objections, he himself should submit to the decision of the court, as he wished to be perfectly passive.

Mr. Smith did not know whether he deserved such an encomium on his impartiality; but as the arrangement of his professional business, in other courts, (though not in this court at this particular time) would not permit him to attend the trial

with any convenience, he should claim the privilege of exemption, to which, in his opinion, he was entitled by law.

CHIEF JUSTICE said, that this privilege would certainly exempt Mr. Smith, unless his attendance were claimed by the prisoner; and as colonel Burr waived this right, Mr. Smith was excused from attending.

James Henderson, of Wood county, who was absent yesterday, was next called; he was challenged for cause. On being examined by Mr. Botts, he admitted that he was not a freeholder, and was consequently set aside.

Mr. Hamilton Morrison was the next of the suspended jurymen who was called. He declared that it was with pain he should serve on the jury; that he did not wish to serve on it; that it was still more disagreeable to him, as the defendant seemed to have such imaginary thoughts against him; that he had not meddled with the prisoner's transactions, though perhaps he might have done so, had it been profitable to him. James Henderson and Mr. Neale were both examined as to what they might have heard him say on this subject, and both declared that they had heard him say nothing material."

Mr. BURR.-Have not these rumours excited a prejudice in your mind against me?

Answer. I have no prejudice for or against you.

Mr. BOTTS.-Are you a freeholder?

Answer. I have two patents for land.

Question. Are you worth three hundred dollars?

Answer. Yes: I have a horse here that is worth the half of it. Question. Have you another at home to make up the other

half.

Answer. Yes: four of them. [Here the court said, that sufficient cause had not been shown against his being a proper juror.] I am surprised why they should be in so much terror of me. Perhaps my name may be a terror, for my first name is Hamilton.

Colonel BURR then observed, that that remark was a sufficient cause for objecting to him, and challenged him. Mr. Morrison was therefore set aside.

This was the first peremptory challenge which the prisoner made, of the thirty five to which the law entitles him.

Thomas Creel, another of the suspended jurymen from Wood county, was next set aside by the court; because, he said, that he had both formed and expressed sentiments unfavourable to the prisoner.

John H. Upshaw was next called up. He stated, before he