Mr. MAC RAE proceeded to make further inquiry of him. He asked him, whether he had read the depositions of generals Wilkinson and Eaton? He answered in the affirmative. He then asked him, whether those depositions had made no impression upon his mind? Hereupon, both colonel BURR and Mr. MARTIN, objected to this inquiry as improper.

Mr. MAC RAE contended, that this examination was in vindication of the rights of the United States, and perfectly proper and correct, and was no more than had been done repeatedly by the prisoner.

Mr. MARTIN. You have no right to disqualify any juryman

for us.

CHIEF JUSTICE.-Certainly the counsel for the United States may challenge for cause.

Mr. MAC RAE.-We are entitled to the same rights, which the opposite counsel have exercised, as to the former venire. When the jurymen were successively called before the court, did not the opposite counsel in every case, challenge for cause? Did not the prisoner make some general observations, that were intended for the ears of the jury; in which he spoke of his right of challenge, and requested every juryman who was conscious of prejudice, to object to himself? Did they not, in several cases, without exercising the right of challenge, previously inquire of the jurymen, whether they had no declarations to make? Did not the counsel for the prosecution, suggest some doubts about the propriety of this course? and did not the prisoner reply, that no juryman ought to lock up in his own bosom, the prejudices which he had conceived, and that he ought to declare himself? Did not Mr. Botts frequently interrogate the jurymen, whether they had nothing to state? Mr. J. Baker's case will be particularly recollected; for that gentleman positively replied, that he had no observations to make, until he had been challenged; and not until this step had been taken, did any declarations fall from Mr. Baker. We wish to pursue the same course now, that was adopted on that occasion. We wish to challenge no juryman for cause, until he have previously made declarations of his state of mind. The same justice is due to the United States that was awarded to the prisoner; and they have the same right to know whether a juryman be as perfectly impartial in relation to the prosecution, as to the prisoner. As to the jurors themselves, they would certainly be willing to give all the information in their power.

Mr. HAY was willing to take the persons selected; for he entertained no doubt of the integrity of the gentlemen who were summoned. He was willing to take them, provided they should

be asked by the bench, whether they were conscious of any cause, which should disqualify them from serving. If they themselves were satisfied, he should be also satisfied. No man on this panel who had definitively made up his mind, would conscientiously think to lay his hand on the book, and solemnly avow himself an impartial and qualified juryman.

The CHIEF JUSTICE understood then, that these selected eight, were to pass without challenge, unless they challenged themselves. If the court were required to say, as seemed to be the wish of the prosecution, that any impressions however slight, were sufficient cause for challenge, he would ask, where they could obtain a jury? The United States had precisely the same rights as the prisoner had, and were entitled to make the same challenges for good cause. He then addressed those eight jurymen who were placed at the head of the panel, thus:

"Gentlemen, if you have made up, and expressed any opinion, either for, or against the accused, you ought to express it."

Mr. BURR. The law presumes every man to be innocent, until he have been proved to be guilty. According to the rules of law, it is therefore the duty of every citizen, who serves on this jury, to hold himself completely unbiassed; it is no disqualification then, for a man to come forward, and declare, that he believes me to be innocent.

CHIEF JUSTICE.-The law certainly presumes every man to be innocent, till the contrary be proved; but if a juryman give an opinion in favour of the prisoner, he must be rejected.

When Christopher Anthony was called to the book, he stated, that he was in court the other day, when the first venire was investigated; that it would be extremely unpleasant to serve on the jury; and, that his general opinions had been precisely the same that had disqualified (as he understood), several other gentlemen. Mr. Anthony's objections were overruled.

John M. Sheppard. I too feel myself disqualified for passing impartially between the United States, and Aaron Burr. From the documents that I have seen, particularly the depositions of generals Wilkinson and Eaton, I have believed, and do still believe, that his intentions were hostile to the peace and safety of the United States; in short, that he had intended to subvert the government of the United States. It would be inflicting a wound on my own bosom, to be compelled to serve under my present impressions. Mr. Sheppard observed, that considerations of a private nature, had also borne upon his mind: for he had a child at home, extremely sick.

Mr. BURR.-Notwithstanding Mr. Sheppard's impressions, I could rely upon his integrity and impartiality. As to his private VOL. I.

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considerations, I do not wish wantonly to wound his feelings. I must request him, therefore, to sit down for a moment, until we shall ascertain, whether we can make a jury without him.

Mr. HAY.-Has the court understood the extent of Mr. Sheppard's declarations?

CHIEF JUSTICE.-If the prisoner's counsel waive the right of challenge, there is an end of it.

James Sheppard was then called; who made no further declarations.

Reuben Blakey. I have made up no opinions either way, positively, on this subject.

Doctor John Fitzgerald. It is incumbent on me, to state to the court, that I have formed and delivered an opinion unfavourable to colonel Burr. My opinion has been founded upon the depositions of generals Eaton and Wilkinson, and other newspaper publications; and it is, that colonel Burr's intentions were hostile and treasonable against the United States. On which account, I am very unwilling to serve, lest I should possess that bias upon my mind, which is unbecoming a juryman. Mr. Fitzgerald was requested to sit down for a few moments.

Miles Bott. From the affidavits of generals Wilkinson and Eaton, my opinion has been completely made up for several months past.

Mr. MARTIN.-I suppose you have only taken up a prejudice on the supposition, that the facts stated were true.

Mr. Bott. I have gone as far as to declare, that colonel Burr ought to be hanged.

Mr. BURR.-Do you think that such declarations would now influence your judgment? Would not the evidence alter your opinion?

Answer. Human nature is very frail; I know that the evidence ought, but it might or might not influence me. I have expressed myself in this manner, perhaps, within a fortnight; and I do not consider myself a proper juryman.

Mr. BURR. It will be seen, either that I am under the necessity of taking men in some degree, prejudiced against me, or of having another venire. I am unwilling to submit to the further delay of other "tales," and I must therefore encounter the consequences. I will take Mr. Bott, under the belief that he will do me justice.

Four jurymen then having been selected, three were sworn. Mr. C. Anthony affirmed.

When Henry E. Coleman was called, he stated, that he had conceived and expressed an opinion, that the designs of colonel

Burr were always enveloped in mystery, and inimical to the United States; and when informed by the public prints, that he was descending the river with an armed force, he had felt as every friend of his country ought to feel.

Mr. BURR.-If, sir, you have completely prejudged my caseMr. Coleman. I have not. I have not seen the evidence. Mr. BURR. That is enough, sir. You are elected.

Mr. HAY then suggested to the court, the propriety of not swearing all the jury this day; as it would subject them to the inconvenience of an unnecessary confinement in their own room to-morrow, (Sunday). Would it not be better for Mr. Marshall (the clerk), to swear three only out of the remaining four? The court might then impanel the whole on Monday, and proceed immediately to business.

Mr. BURR had no objections to this measure; but hoped that the court would enjoin them not to hold any conversations on the subject of the trial.

John Curd, upon being called, stated, that he had no prejudices, for or against the prisoner; but that he was bound in candour, to inform the court, that he was afflicted by a disorder, (a palpitation of the heart), which was irregular in its attacks, but was sometimes very sudden and violent, and rendered him entirely incapable of business; and if he were sworn on the jury, it might interrupt and delay the progress of the cause. He was

excused.

Isham Godwin had formed and declared a uniform opinion of colonel Burr's guilt. If he were impaneled, he should be under a strong impression, that colonel Burr was guilty of treason. Suspended.

Samuel Allen, had, for several months, made up an opinion unfavourable to the prisoner. Suspended.

Benjamin Graves had not formed an opinion; and gave a long history of his domestic and family engagements, to excuse himself from serving. He was asked, whether he could not make some arrangements of this business, between this time and Monday, calculated to remove all the inconvenience of his serving? Mr. Graves could not positively say.

Mr. BURR then observed, that the two jurors who had been selected, might be sworn; the other two might be selected on Monday. And Messrs. Coleman and Graves were accordingly

sworn.

Mr. BURR hoped, that the marshal would direct all the necessary preparations to be made for the accommodation of the jury, who would be confined to their own chamber after Monday.

Colonel Thomas Branch was then excused from serving, because he was engaged in military business.

The CHIEF JUSTICE requested the jury and the remaining members of the venire, to attend on Monday, at twelve o'clock; and enjoined them to hold, in the mean time, no communication on this subject with any person.

Mr. HAY stated, that he was satisfied, from some expressions which he had heard from Mr. Munford, of Powhatan, at the moment of his summons, that the prisoner would himself object to him.

Mr. BURR was satisfied with the attorney's word; and Mr. Munford was accordingly discharged.

Mr. BURR was sorry to be importunate; but he was under the necessity of mentioning once more the letter of the 21st October. He wished to know, whether the attorney had yet found it amongst his papers, or whether he could point to any other means of obtaining it.

Mr. HAY had examined two bundles of papers transmitted to him by Mr. Rodney; but he had not found it. There were other papers which he had yet to examine. He had, however, a copy of the original letter.

Mr. BURR.-Where is this copy from? From Washington, or from general Wilkinson?

Mr. HAY.-It is from general Wilkinson. He has, however, written it from the original.

Mr. BURR.-I shall not accept of his copy: but I will state this proposition to the attorney. If he do not find this letter by Monday, will he consent that I obtain a subpœna duces tecum? Mr. HAY. I have no objection.

CHIEF JUSTICE.-I suppose an order may be made to issue a subpoena duces tecum addressed to the attorney general of the United States, in case the letter be not found.

Mr. HAY.-I have no objection.

A desultory conversation ensued between Messrs. HAY and BOTTS, on the arraignment of H. Blannerhassett. Mr. Hay was averse to interrupting the jury after it had once been impaneled for the trial of Mr. Burr: he was therefore anxious to have Blannerhassett immediately arraigned, and if possible, to have some day fixed for his trial.

Mr. BOTTS did not think it possible for the court to fix on a particular time for his trial, or for the attorney to furnish any means for calculating it. Mr. Blannerhassett was not prepared