was interrogated, that he had received strong impressions against colonel Burr, but that he believed he could find a verdict according to testimony.

The CHIEF JUSTICE wished to know, whether those impressions related to the general charge of treason against the prisoner, or to what happened before, or to what circumstances?

Mr. Upshaw answered, that they related to the transactions in the western country; and added, " my opinions have changed as the lights of evidence seemed successively to appear. It was my first impression, that he had nothing more in view than the settlement of the lands on the Waschita. I next supposed that he intended to attack Mexico; but that as a mean of effecting that object, he intended to attack New-Orleans: and last of all, that his plans were of a more complicated nature; but that he never thought, till after his leaving the mouth of Cumberland, that Burr had treasonable designs; but that he could not recollect particularly, the times, when he formed, or changed these opinions.

Mr. WICKHAM asked him, whether, as the result of all these impressions, he did not consider colonel Burr a dangerous man? He answered, that that was his impression.

Mr. MAC RAE.-Have you formed or delivered an opinion, that he has committed an overt act of treason, as charged in the 'indictment?

Answer. I have not.

Mr. MARTIN said, that he should state, whether there were any bias on his mind, although he did not believe that an overt act had been committed; for if he had such bias, he was unfit for a juryman.

Mr. BAKER.-Have you not, in your own county, argued in conversation, to show, that colonel Burr was guilty, and that there was strong presumptive evidence against him?

Answer. I have done so; and not only supported such opinions, but have gone on to vindicate the propriety of the measures taken by the government.

Mr. BURR said, that enough had appeared to show, that Mr. Upshaw had taken up strong prejudices against him.

Mr. HAY asked, whether such testimony as that could disqualify him as a juryman?

Mr. Upshaw said, that he had been in the habit of impressing on others his prejudices, or opinions, that Burr was a dangerous man to the community.

Mr. MAC RAE.-I beg leave to ask, whether personally you

have any prejudices against him? Have you any other prejudice against him, except that he has entertained treasonable designs? He answered explicitly, that he had not.

Mr. BURR.-Had you not, anterior to those transactions rumoured in the western country, formed an unfavourable opinion of me?

Mr. Upshaw answered, that he had before (with other persons) formed rather an unfavourable opinion against him, during the presidential election (of 1801,) though he had no positive evidence on that subject.

Here Mr. Upshaw was suspended, till the general question on the doctrine of challenges should be argued.

Mr. MARTIN rose to proceed with his argument. He stated, that it was one of the soundest principles of law, that every man had a right to be tried by an impartial jury: that this right extended to all cases, civil and criminal; but that in criminal cases it was secured by the constitution in a positive and sacred manner, so that all altercation as to the meaning of the terms was rendered unnecessary.

Mr. MAC RAE apologized for interrupting Mr. Martin, but suggested that it would be a saving of time, first, to know the objections to all the jurors, and then to have one general argument, as to all, instead of having an argument on each particular case as it might occur; that he wished to economize time, and that the experience of yesterday showed the propriety of saving time as much as possible. Evidence is now heard as to this case, and if it be argued, the court must hear arguments in the case of every other juryman: he did not see the necessity of holding twelve arguments instead of one, where the cases were precisely similar. He did not wish to prescribe to gentlemen the course of proceeding, but he really supposed that one argument would suffice for all the cases.

To this the CHIEF JUSTICE assented.

Mr. MARTIN. I have been repeatedly interrupted by the gentlemen; and they have found out in their infinite wisdom, that we are to hold twelve arguments on this point. They talk, sir, of economy of time: they have shown a happy instance of this economy of time, when I was here on a former occasion. I know what kind of economy they wish. They wish us to be silent; they would, if they could, deprive colonel Burr's counsel of an opportunity of defending him, that they might hang him up. as soon as possible, to gratify themselves and the government.

Mr. MAC RAE.-That is a most unprincipled and most unfounded assertion.

Mr. BURR said, that he thought the gentlemen for the prosecution were not altogether so wrong. Generally the question was whether those gentlemen who said, that they were convinced that he had treasonable intentions were impartial and proper jurymen? They had avowed their conviction as to these intentions in court; that one argument would apply to all; and if the principle were once fixed, it would not be necessary to renew it in the case of each gentleman; that they had entered into the argument because they wished the principle to be settled, and then it could be applied to the particular cases.

Mr. HAY.-We wish the argument to proceed without hearing ourselves grossly insulted; without making accusations against us that are malicious and groundless. We said nothing that could give offence to the feelings of any gentleman. The gentlemen cannot say with truth, that we wish to deprive them of the right of defending their client. The charge is unjust. I wish him to have a fair trial, and justice to be done with all my heart; but I feel myself hurt, and grossly insulted, when the gentlemen on the other side charges me with feelings that are disgraceful to humanity. I trust, therefore, that the arguments will no longer be conducted with such indecorum.

The CHIEF JUSTICE had hoped, that no such allusions would have been made; that the government ought to be treated with respect, and that there was a delicacy to be observed on that subject, from which he hoped there would be no departure hereafter.

Mr. BURR.-I rose to stop the progress of such language when up before. I had made sufficient apologies, if any were necessary, for any expressions which had been used, and I had hoped, that no allusions would have been made to the subject. It will be recollected, that I have constantly manifested my displeasure at such expressions. I have carefully avoided such myself, and imposed similar restraints on my counsel; and urged, that the government should be treated with the utmost delicacy, though there was great provocation from the gentlemen on the part of the prosecution, which would have justified harsh terms. I hope these things will cease. On the part of my counsel I am sure they will cease.

Mr. MARTIN. I have no wish to hurt the feelings of a single individual, but they have no right to hurt our feelings; and. when I am so often interrupted and charged with wasting the public time, and the gentlemen still persist in their observations, I cannot repress mine.

As to the point before the court, what I am about to adduce will show unequivocally, that these gentlemen are not proper jurymen. The emphatic language of the constitution is, that jurors shall be free from all bias and prejudice. The constitution of the United States requires, that every criminal shall be tried by an "impartial jury;" that is, a jury that must be perfectly indifferent, and have no prejudice whatever on their minds; that every juror shall receive his impressions from the evidence which shall be adduced in legal form, and under the sanction of an oath. But those gentlemen come with minds already prepossessed against the prisoner, and it will require stronger evidence to eradicate those previous impressions; whereas, according to the constitution, there ought to be no impression against a criminal, except what arises from the facts proved against him in court, according to the rules of law on the subject. To this effect, I will take the liberty of reading Reeves' History of the English Law, vol. 1, p. 329. to show the rigid impartiality required by the law of England. [Here Mr. Martin read it.]

Every objection that is valid against a juryman is valid against a witness, but not vice versa. The credibility of a witness may be questioned though he be admitted to be sworn, but a juror must be free from every objection; exempt from every thing that may possibly give a bias to his mind or judgment. He must have no enmity against, or friendship with the party, whose cause he is to try. That even a great or particular familiarity, or being constantly at the same table with him, will disqualify him from being a juror. See 2d vol. Reeve's English Law, p. 446. The general principles herein stated, show how particularly cautious the law is, that jurors should, in all cases be free from all impressions and influence, and not liable to be suspected.

In confirmation of this doctrine, I will refer your honours to Care's English Liberties, p. 245. a work of very considerable merit. He states here the great benefits of the trial by jury; that "no man's life shall be touched for any crime whatsoever till found guilty on two trials; that no person shall suffer death but by the verdicts of twice twelve men against him, or two juries: one to find the bill or charge to be true, and the other on the merits, to decide on full and legal proof, adduced on both sides, all of which jurors must be honest, substantial, impartial men." In page 248. he tells us what he means by an impartial man: "that he ought to be least suspicious, that is, to be indifferent as he stands uns worn;" that his mind should be free from every cause of suspicion. In page 249. the author is still more explicit. Among other qualities, he says, "that jurors must be free of and from all manner of affections, relations and prejudices." This is a general proposition extending to all cases

whatsoever, civil as well as criminal; and if a man to be a proper juror, must be divested of all affection for, and all relationship to, the parties in a civil case, how much more essential is it that he should be in this situation in a case of life and death? He must be also "free from all prejudices," and come into court in that situation; that all his impressions are to be received from legal evidence, delivered in open court, under the sanction of an oath. His mind must be totally indifferent in every respect. As to the idea of a person charged being guilty or innocent, it is one of the most sacred as well as humane maxims of the law, that it presumes every man to be innocent, till an impression by the evidence is made on the minds of the jurors to remove that presumption. I do not understand this quartering and halving of prejudices, and partialities. It is not sufficient that one man should have only a quarter of the prepossession of another; or that this man should only have one half, or three fifths, or four sevenths of the prejudice of that; but the law requires, that he shall not be biassed at all; that he shall be perfectly impartial. The constitution has secured to us a privilege so sacred, that no law, nor this court of justice ean take it from us. Sir, so jealous were the citizens of the United States of their rights, that they were dissatisfied with the constitution in its original form, because it did not expressly provide, that there should be a trial of every offence by an impartial jury." They therefore chose to have it secured by the constitution, so that there should be no possibility of being deprived of an "impartial jury-trial." The eighth amendment of the constitution provides, that " in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed."

This provision in the constitution, which secures this sacred right, is binding on every judge, sitting on the trial of every criminal. It forbids him to force upon him any juror that is not perfectly indifferent. Gentlemen may say, that we must take such men or have no trial at all. Gentlemen do not understand the subject correctly. They take it for granted, that colonel Burr must be tried at all events, and hung, if an impartial jury cannot be had! But I contend, that if an impartial jury cannot be found to try him, he cannot be tried at all: because the constitution says, that he "shall be tried by an impartial jury." But I do not believe what has been said, that an impartial jury cannot be found in Virginia! I have no doubt, that many impartial juries can be found in Virginia. The plea of necessity of trial insisted on by the gentlemen is not founded on fact. I can see no such necessity as to render it compulsory on the court to try him in any event, whether an impartial jury