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 décisive 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 presi dent'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 therefore 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

mination against me? However indisposed I may be to serve, I shall not withdraw but by the direction of the court.

After some observations by Messrs. Wickham, Randolph and Hay, the chief justice observed, that the difference seemed to be, that Dr. Foushee had made up an opinion both as to law and fact; whereas other gentlemen had formed an opinion only as to certain facts. Consequently Dr. Foushee was permitted to withdraw.

Colonel JAMES BARBOUR being next called, excepted to himself on a principle in some degree similar to that on which Dr. Foushee claimed to be excused: that of being impressed with sentiments unfavourable to colonel Burr. But his excuse was deemed insufficient by the court.

The grand jury were then sworn, and were as follows:

John Randolph, junior, foreman.

The CHIEF JUSTICE then delivered an appropriate charge to the grand jury, in which he particularly dwelt upon the definition and nature of treason, and the testimony requisite to prove it. After which they retired.

Colonel BURR then addressed the court, and stated his wish, that the court should instruct the grand jury on certain leading points, as to the admissibility of certain evidence which he supposed would be laid before the grand jury by the attorney for the United States.

Mr. HAY hoped, that the court would proceed as they had always done before, and that they would not grant particular indulgences to colonel Burr, who stood on the same footing with every other man charged with a crime. That they had already charged the jury on certain material principles, and he trusted that the court would not depart from established rules, or adopt a new precedent, to oblige the accused.

Mr. BURR.-Would to God that I did stand on the same ground with every other man. This is the first time I have ever been permitted to enjoy the rights of a citizen. How have I been brought hither?

The CHIEF JUSTICE said it was improper to go into these digressions.

Mr. BURR said, that the attorney for the United States had mistaken, his meaning, if he supposed that he wished to be considered as standing there on a different footing from other citizens; that he viewed himself as only entitled to the same privileges and rights which belonged to every other citizen; that how much soever he may have disapproved of certain principles laid down by the supreme court in their late decisions, he should not at present insist on his objections to them; that there were many points on which the best informed jurymen might be ignorant, or entertain doubts. All he wished the court to do now was, to instruct the jury on certain points relating to the testimony; for instance, as to the article of papers.

Mr. HAY pledged himself that no attempt should be made to send up any testimony to the jury without the knowledge of the court.

Mr. RANDOLPH observed, that it was not on particular parts, but on certain principles of testimony, that he wished instructions from the court to the jury: for instance, to instruct them how many witnesses were necessary to satisfy them that an overt act was committed; how far facts committed in different districts, should be suffered to bear upon a single act committed in one district; how far facts done in one district, ought to be admitted as evidence to confirm the commission of other facts in another district; and what in short was proper evidence to be laid before them.

Mr. HAY objected to this proceeding as extraordinary; that the opposite counsel would require from the court a dissertation on the whole criminal law, upon every point which might possibly occur; that the jury were the proper judges, and if they had doubts let them apply to the court for instructions.

Mr. WICKHAM observed, that this was not an ordinary case as had been said; that the man who thought so must have shut his eyes against the host of prejudices raised against his client; that the attorney for the United States had said, that there was no man who had not formed an opinion on it; that he did not require a dissertation on criminal law in general, but merely that the court would instruct the jury on certain points of law and evidence; that the necessity of instructing arose from the peculiarity of this case; that there might be witnesses from different parts of the United States, who would state facts not connected with colonel Burr; that there were witnesses to show what was done in the western country when he was hundreds