this section, if it be a material point, he is to be excluded as a juror, because he had made up his mind before on the same subject. It is not merely that if he decided on the whole, but if he have only decided a material point of the same cause, he is incapacitated from serving as a juror.

Mr. Wickham has anticipated me, in shewing the effect of different jurors acting on a conviction of different parts of the guilt; that one juror having formed his opinion on one point, and another on another, they may compromise, till by mutual complacency and acquiescence, they make the accused the victim, by a verdict of condemnation.

I will make one observation on the case of Horne Tooke, to shew that Thompson did not attend the trial, and that the construction which gentlemen put on it, is incorrect. If Thompson had been present, the law applying to the case, was different from what they contend it to be. It is said, that a friendship or intimacy with a party in a suit, is not a cause of exception to a witness, though it always is to a juror. Some books say, that if a juror be returned by a party, he is disqualified from serving. The law with respect to the admission or exclusion of a juryman, must vary according to the circumstances, and the nature of the influence, which a party in a cause has over his mind.. They suppose the question before the judge to have been, "Shall he be excused from serving as a juror or not?" It was not so. It was, whether he should be excused for non-attendance? A mere acquaintance with another for thirty-four years, does not exempt a man from being on a jury to try that other; but if the intimacy and friendship be so great, as to create an influence over him, he would be rejected of course.

I shall not detain the court any longer, but shall conclude with a hope, that you will preserve the purity of jury-trial from violation; that you will take more than common pains to preserve it free and unfettered. I appeal to the volume of human nature; I appeal to the human heart. I could appeal to Mr. Hay's great tribunal itself, to determine, whether there ever were a man who could dispassionately and impartially try a cause, one half of. which he had already prejudged?

Mr. MARTIN then observed, that in Tooke's case, no challenge was stated to have been made to Thompson the juror, by either the king or the prisoner; and of course the question could not have occurred, whether he should be excused from serving on the jury.

The CHIEF JUSTICE then delivered the following opinion. The great value of the trial by jury, certainly consists, in its fairness and impartiality. Those who most prize the institution,

prize it because it furnishes a tribunal, which may be expected to be uninfluenced, by any undue bias of the mind.

I have always conceived, and still conceive, an impartial jury as required by the common law, and as secured by the constitution, must be composed of men, who will fairly hear the testimony which may be offered to them, and bring in their verdict, according to that testimony, and according to the law arising on it. This is not to be expected, certainly the law does not expect it, where the jurors, before they hear the testimony, have deliberately formed and delivered an opinion, that the person whom they are to try, is guilty or innocent of the charge alleged against him.

The jury should enter upon the trial, with minds open to those impressions, which the testimony and the law of the case ought to make, not with those preconceived opinions, which will resist those impressions.

All the provisions of the law are calculated to obtain this end. Why is it that the most distant relative of a party cannot serve upon his jury? Certainly the single circumstance of relationship, taken in itself, unconnected with its consequences, would furnish no objection. The real reason of the rule is, that the law suspects the relative of partiality; suspects his mind to be under a bias, which will prevent his fairly hearing and fairly deciding on the testimony which may be offered to him. The end to be obtained is an impartial jury; to secure this end, a man is prohibited from serving on it, whose connexion with a party, is such as to induce a suspicion of partiality. The relationship may be remote; the person may never have seen the party; he may declare that he feels no prejudice in the case, and yet the law cautiously incapacitates him from serving on the jury; because it suspects prejudice; because in general, persons in a similar situation, would feel prejudice.

It would be strange if the law were chargeable with the inconsistency of thus carefully protecting the end from being de feated by particular means, and leaving it to be defeated by other means. It would be strange if the law would be so soli. citous to secure a fair trial, as to exclude a distant unknown relative from the jury, and yet be totally regardless of those in whose minds feelings existed, much more unfavourable to an impartial decision of the case.

It is admitted, that where there are strong personal prejudices, the person entertaining them is incapacitated as a juror; but it is denied that fixed opinions respecting his guilt constitute a similar incapacity.

Why do personal prejudices constitute a just cause of challenge? Solely because the individual who is under their influence, is presumed to have a bias on his mind, which will prevent

an impartial decision of the case, according to the testimony. He may declare that notwithstanding these prejudices, he is determined to listen to the evidence, and be governed by it; but the law will not trust him.

Is there less reason to suspect him who has prejudged the case, and has deliberately formed and delivered an opinion upon it? Such a person may believe that he will be regulated by testimony, but the law suspects him, and certainly not without reason. He will listen with more favour to that testimony which confirms, than to that which would change his opinion: it is not to be expected that he will weigh evidence or argument as fairly as a man whose judgment is not made up in the case.

It is for this reason that a juror who has once rendered a verdict in a case, or who has been sworn on a jury which has been divided, cannot again be sworn in the same case. He is not suspected of personal prejudices, but he has formed and delivered an opinion, and is therefore deemed unfit to be a juror in the cause. Were it possible to obtain a jury without any prepossessions whatever, respecting the guilt or innocence of the accused, it would be extremely desirable to obtain such a jury; but this is perhaps impossible, and therefore will not be required. The opinion which has been avowed by the court, is, that light impressions which may fairly be supposed to yield to the testimony that may be offered; which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objec tion to a juror; but that those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to him. Those who try the impartiality of a juror, ought to test him by this rule. They ought to hear the statement made by himself or given by others, and conscientiously determine, according to their best judgment, whether in general, men under such circumstances, ought to be considered as capable of hearing fairly, and of deciding impartially, on the testimony which may be offered to them; or as possessing minds in a situation to struggle against the conviction which that testimony might be calculated to produce? The court has considered those who have deliberately formed and delivered an opinion on the guilt of the prisoner, as not being in a state of mind fairly to weigh the testimony, and therefore as being disqualified to serve as jurors in the case.

This much has been said relative to the opinion delivered yesterday, because the argument of to-day appears to arraign that opinion, and because it seems closely connected with the point which is now to be decided.

The question now to be decided, is, whether an opinion formed and delivered, not upon the full case, but upon an essential part

of it, not that the prisoner is absolutely guilty of the whole crime charged in the indictment, but that he is guilty in some of those great points, which constitute it, do also disqualify a man in the sense of the law and of the constitution from being an impartial juror? This question was adjourned yesterday for argument, and for further consideration.

It would seem to the court, that to say, that any man who had formed an opinion on any fact conducive to the final decision of the case, would therefore be considered as disqualified from serving on the jury, would exclude intelligent and observing men, whose minds were really in a situation to decide upon the whole case according to the testimony, and would perhaps be applying the letter of the rule requiring an impartial jury, with a strictness which is not necessary for the preservation of the rule itself. But if the opinion formed, be on a point so essential as to go far towards a decision of the whole case, and to have a real influence on the verdict to be rendered, the distinction between a person who has formed such an opinion, and one who has in his mind decided the whole case, appears too slight to furnish the court with solid ground for distinguishing between them. The question must always depend, on the strength and nature of the opinion which has been formed.

In the case now under consideration, the court would perhaps not consider it as a sufficient objection to a juror, that he did believe, and had said, that the prisoner at a time considerably anterior to the fact charged in the indictment, entertained treasonable designs against the United States. He may have formed this opinion and be undecided on the question, whether those designs were abandoned or prosecuted up to the time when the indictment charges the overt act to have been committed. On this point, his mind may be open to the testimony, although it would be desirable that no juror should have formed and delivered such an opinion, yet the court is inclined to think, it would not constitute sufficient cause of challenge. But if the juror have made up and declared the opinion, that to the time when the fact laid in the indictment is said to have been committed, the prisoner was prosecuting the treasonable design with which he is charged, the court considers the opinion as furnishing just cause of challenge, and cannot view the juror who has formed and delivered it as impartial, in the legal and constitutional sense of that term.

The cases put by way of illustration, appear to the court, to be strongly applicable to that under consideration. They are those of burglary, of homicide, and of passing counterfeit money, knowing it to be counterfeit; cases in which the intention and the fact combine to constitute the crime.

If, in case of homicide, where the fact of killing was admitted or was doubtful, a juror should have made up and delivered the opinion, that, though uninformed, relative to the fact of kil ling, he was confident as to the malice; he was confident that the prisoner had deliberately formed the intention of murdering the deceased, and was prosecuting that intention up to the time of his death; or if on the charge of passing counterfeit bank notes, knowing them to be counterfeit, the juror had declared, that though uncertain as to the fact of passing the notes, he was confident that the prisoner knew them to be counterfeit, few would think such a person sufficiently impartial to try the cause according to testimony. The court considers these cases as strikingly analogous.

It has been insisted, that in Callender's case, an opinion was given different from that which is now delivered.

I acknowledge, that I had not recollected that case accurately. I had thought, that Mr. Basset had stated himself to have read the book charged as a libel, and to have formed the opinion that the publication was a libel. I find by a reference to the case itself, that I was mistaken; that Mr. Basset had not read the book, and had only said, that if it were such a book as it had been represented to him, he had no doubt of its being a libel. This was going no farther than Mr. Morris has gone, the challenge against whom has been overruled. Mr. Morris had frequently declared, that if the allegations against the prisoner were true, he was guilty, and Mr. Morris was determined to be an impartial juror.

With respect to the general question, put in Callender's case, the court considers it as the same with the general question put in this case. It was, "Have you made up and delivered the opinion, that the prisoner is guilty or innocent of the charge laid in the indictment?" That is in substance, "Have you made up and delivered the opinion that the prisoner has been guilty of publishing a false, wicked, and malicious libel, which subjects him to punishment, under the act of congress, on which he is indicted?" The same question is now substantially put. Expla natory questions are now put when they are necessary; and certainly explanatory questions might have been put in Callender's case, had they been necessary.

Had the case of Mr. Basset even been such as I thought it, had he read "The Prospect Before Us," and thought it a libel without deciding who was its author, he would have gone no further than to have formed an opinion, that certain allegations were libellous, which is not dissimilar to the opinion, that certain acts amount to treason. If, for example, a juror had said, that levying an army for the purpose of subverting the government of the United States by force, and arraying that army in a warlike manner, amounted to treason, no person could suppose