eyer, as it is left to me to elect, whether to serve on the grand jury or not, I will certainly withdraw.

CHIEF-JUSTICE.The court thinks, that if any gentleman has made up and declared his mind, it would be best for him to withdraw.

Mr. BURR.-A gentleman who has prejudged this cause, is certainly unfit to be a juryman. It would be an effort above human nature for this gentleman to divest himself of all prepossessions. I believe his mind to be as pure and unbiassed as that of any gentleman under such circumstances. But the decisive opinion he has formed upon this subject, though in his public character, disqualifies him for a juryman. But he is one of the last men on whom I would wish to cast any reflections. So far from having any animosity against him, he would have been one of those whom I should have ranked among my personal friends. The other gentleman whom I shall challenge is Wilson Cary Nicholas.

Mr. Nicholas desired that the objections against him should be stated.

Mr. BURR.-The objection is, that he has entertained a bitter personal animosity against me; and therefore I cannot expect from him that pure impartiality of mind which is necessary to a correct decision. I feel the delicacy of my situation; but if the gentleman will consent to withdraw, I will waive any further inquiry.

Colonel WILSON C. NICHOLAS rose, and addressed the court as follows:

My being in this situation certainly was not a thing of choice. When I was summoned by the marshal, I urged him in the strongest manner to excuse me. I mentioned to him, that it would be extremely inconvenient to me to attend the court, and that it would be very unpleasant to serve on the jury, on account of the various relations in which I had stood to colonel Burr. I had been in congress at the time when the attempt was made to elect colonel Burr president of the United States. My feelings and opinions on that occasion are well known. I had served three years in the senate while colonel Burr was president of that body, and was one of those who, previous to the last election, had taken a very decided part in favour of the nomination of the present vice president, for the office at that time filled by colonel Burr. Moreover, from the time that colonel Burr first went to the western country, my suspicions were very much excited as to his probable objects, in that part of the United States; in consequence of which I gave early and perhaps too great credit to the charges which were brought against VOL. I. F

him. Such was my opinion of the importance of New-Orleans, not only to the prosperity, but to the union of the states, that I felt uncommon anxiety at what I believed to be the state of our affairs in the west, and had expressed my impressions very freely in conversation, and in letters to my friends during the last winter. Under these circumstances, I doubted the pro priety of my being put on the jury; but I felt no distrust of my self, as I was confident that I could discharge the duty under a just impression of what I owe to my country, to the accused, and to my own character, The marshal assured me, that he felt the strongest disposition to oblige me, but that he thought he could not do it, consistently with his duty. He supposed there was scarcely a man to be found, who had not formed and expressed opinions about colonel Burr. That he too was in a situation of great delicacy and responsibility, and that, without the utmost circumspection on his part, he would be exposed to censure. I renewed my application to the marshal several times, and always received the same answer. Thus situated, I determined to attend the court, both from a sense of duty, and because I would not put it in the power of the malicious, and those disposed to slander me, to assign motives for absenting myself, which had no kind of influence on me. Another reason for pursuing this course presented itself some time after I had formed this determination. I conceived that an attempt had been made to deter me from attending this court. I was informed by a friend in the city, that he had heard, that one of the most severe pieces which had ever been seen, was preparing for publication, if I did attend, and serve on the grand jury. From what quarter this attack was to come, I do not know. The only influence which that circumstance had, was to confirm me in the determination I had made; as I was much more inclined to defy my enemies, than to ask their mercy or forbearance. From the first I hesitated, whether I ought not to make the same representation to the court, that I had made to the marshal. As I was in doubt on the subject before I came from home, I committed to paper the substance of what I have now said, and consulted three gentlemen who were lawyers, men of honour, and my personal friends. Their advice to me was not to mention it, for they did not believe that the court would or ought to discharge me for the reasons I had mentioned. As I was in doubt myself, I determined to follow their advice, and the more readily as they seemed confident that I would not be discharged, and I was not scrupulous of acquiring, in this way, a reputation for scrupulous delicacy. I was perfectly willing, that my reputation should rest on the general tenor of my life, and did not believe that my character required such a prop. At present I feel myself embarrassed how to act. I certainly was, and am, anxious not to serve on the jury, but am unwilling to

withdraw, lest it should be thought that I shrink from the discharge of public duty of great responsibility, and I am not willing to be driven from the discharge of that duty in a way which should lead to a belief, that the objection to me is either acknowledged to be well founded, or has been sustained by the court. Upon this subject, the example of Mr. Giles has great weight with me. That consideration, and a hope that my motives cannot now be misunderstood or misrepresented, will induce me to do as he has done.

Colonel BURR.-The circumstance mentioned by the gentleman, that an attempt has been made to intimidate him, must have been a contrivance of some of my enemies, for the purpose of irritating him, and increasing the public prejudice against me; since it was calculated to throw a suspicion on my cause. Such an act was never sanctioned by me, nor by any of my friends. I view it with indignation, and disclaim any knowledge of the fact in question.

The court established the following, as being the proper questions to be put to the jurors: First, Have you made up your mind on the case, or on the guilt or innocence of colonel Burr, from the statements you have seen in the papers or otherwise? and finally, Have you formed and expressed (or delivered) an opinion on the guilt or innocence of colonel Burr (or the accused?)

Major JOSEPH EGGLESTON now addressed the court to this

effect:

I understood the court to say, that this was the proper time to apply to be excused from serving on the grand jury. Having been summoned by the marshal to serve as a grand juror, I wrote a letter to that officer, desiring him to excuse me; but he refused. In addition to some private reasons, there is one of a public nature, which I hope will exempt me from being retained on the jury. As soon as I read the deposition of general Eaton in the newspapers, I felt and expressed considerable warmth and indignation on the subject likely to come before the grand jury; and on that account it might be both indelicate and improper in me to serve on the grand jury, however correct the decision of that body might be.

The chief justice having asked whether he had formed and expressed an opinion on this subject, major Eggleston repeated what he had said as to his warmth after reading general Eaton's deposition, and said, that he had expressed his opinion in public company; yet he declared his belief, that he could so far divest himself of his previous opinions and feelings, as to be able to decide according to the testimony and the law. It had been

said, that a bias might imperceptibly remain upon the minds of men of the purest intentions, and as it might possibly be the case with him, he again desired to be excused.

Mr. BURR.-Under different circumstances, I might think and act differently; but the industry which has been used through this country to prejudice my cause, leaves me very little chance, indeed, of an impartial jury. There is very little chance that I can expect a better man to try my cause. His desire to be excused, and his opinion that his mind is not entirely free upon the case, are good reasons why he should be excused; but the candour of the gentleman, in excepting to himself, leaves me ground to hope, that he will endeavour to be impartial. I pray the court to notice, from the scene before us, how many attempts have been made to prejudge my cause. On this occasion I am perfectly passive.

CHIEF-JUSTICE.-What are your impressions now? Have you formed a decisive opinion on this case?

Mr. EGGLESTON.-I have formed some opinion on the statement and evidence I have seen; and if no other evidence were to be produced, I should probably retain it. I am willing to hear other testimony, but I wish to be excused.

The court did not excuse him.

The panel was here called over, and fourteen only appeared: upon which the marshal requested the clerk to add thereto the names of John Randolph and William Foushee. The court then instructed the clerk to place Mr. Randolph as foreman, who being called on to take the foreman's oath, addressed the court thus:

May it please the court,

I wish to be excused from serving. I will state the reasons of that wish. I have formed an opinion, not on the case now before the court, because I know not what that case is; but concerning the nature and tendency of certain transactions imputed to the gentleman now before you. I do trust, that without arrogating to myself any thing more than becomes a man, I would divest myself of this prepossession upon evidence. But I should be wanting in candour to the court and the party accused, if I did not say, that I had a strong prepossession.

Mr. BURR.-Really I am afraid, that we shall not be able to find any man without this prepossession.

CHIEF JUSTICE.-The rule is, that a man must not only have formed, but declared an opinion, in order to exclude him from serving on the jury.

Mr. RANDOLPH.-I do not recollect to have declared one.

Upon which Mr. Randolph was sworn as foreman, and the rest of the panel called to the book, until it was Dr. Foushee's turn. He stated to the court, that he felt some difficulty about the propriety of serving on the jury; that, after hearing the number of excuses which were made and overruled by the court, he was unwilling to bring himself before the court, to claim an exemption from serving. But having the same feelings with other gentlemen, he must move the court to excuse him.

After a few desultory remarks by Mr. Burr and Mr. Wickham, doctor Foushee stated, that after having read the president's message, general Eaton's deposition, and the publications in the newspapers respecting colonel Burr, and having heard little but from those publications, he had formed an opinion of colonel Burr's guilt; and unless other testimony were adduced, his impression would probably be retained. That his present opinion might, however, be said to be merely hypothetical, and predicated on the supposition of the truth of general Eaton's testimony, and those other publications: but that he would as easily divest his mind of prejudice as any other man; and that, on the exhibition of other testimony, he might change his opinion.

Mr. WICKHAM and Mr. RANDOLPH delivered their opinions as to the impropriety of the doctor serving as a grand juror. And

Mr. HAY insisted, that he was a proper juror; that there was not a man in the United States, who probably had not formed an opinion on the subject: and if such objections as these were to prevail, Mr. Burr might as well be acquitted at

once.

Mr. BURR.-This gentleman has said, that from the evidence he has already seen, he has made up his mind; but that, on hearing other testimony, he may change it. But as a grand juror, he will only hear testimony on one side. The evidence which will be laid before the grand jury, will be altogether on the part of the United States, and ex parte; and no testimony to remove the impressions, which he has already imbibed, will be offered. There will be an accumulation of evidence on the same side to increase the bias already on his mind, and nothing on the other to counteract it. I hope there. fore the court will suffer him to withdraw.

Dr. FOUSHEE.-I have stated what other gentlemen have done that if the testimony I have seen be true, and nothing brought to counteract it, my impression will of course remain unchanged. I ask, if others are not excused, why this discri