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TRIAL OF AARON BURR.
FROM THE VIRGINIA ARGUS, MAY S3.
Yesterday the circuit court of the
United States for the fifth circuit and
district of Virginia, commenced its
session in this city. The expected
trial of colonel Burr drew together
an immense concourse of citizens from
Various parts of the union ; indeed lar
exceeding any that we recollect ever
to have seen upon any former occasion.
At half past twelve o’clock the court
was opened, present
John Marshall, chief justice of
the United States.
Cyrus Griffin, judge of the dis
trict of Virginia.
Before the grand jury was impan
nelled and sworn, a lengthy and desul
tory argument took place between col.
Burr with his counsel on the one side
and the attorney for the United States
in the district of Virginia, on the oth-
| p i to o,,crptl7ii3 UIfCCH by
the former to the manner in which
some of the jurors were summoned,
and finally on objections to some indi
vidual members of the jury. The
late hour at which the court adjourn
ed obliges us to compress into as nar
row a compass as possible, the pro
ceedings in this preliminary stage of
the business. Indeed, if it were in
our power to prepare the arguments at
full length, we doubt extremely the
propriety of publishing them during
the pendency of the trial, before even
the petit jury shall be sworn; especi
ally as sonic of those arguments con
tained a degree of asperity which
might possibly influence the minds of
tlio >e who may finally pass between the
United States and the accused.
After it was ascertained that eigh
teen of the grand jury had answered to
their names, * colonel Burr stated an
objection to the manner in which part
of them had been summoned by the
marshal. He disclaimed every idea
of casting any imputation on that offi
cer, unfavorable either to him or his
deputies; but considered the irregu
larity of bis proceedings as the mere
effect of an error in construing the law,
which error it was proper to correct.
He adverted to the law of Virginia by
which 24 persons properly qualified
are directed to be summoned as a
grand jury ; and contended that, when
the olficer had summoned that num
ber, his authority ceased, and he had
no power to summon the twenty-fifth.
In the present case, lie said, lie was au
thorised to state, that alter the mar
shal had summoned the number requi
red by law, he had accepted of excu
ses from part of them, and had after
wards completed the pannel by sum
moning additional members.
He was followed by Mr. Boris,
who went more particularly into an
examination of the question, and refer
red to the judicial act of congress and
the laws of Virginia, prescribing the
duty of officers in summoning a grand
jury. lle also cited the case of M ak
r.uiiY v. Madison (1 Cranch) to
shew that when a ministerial act was
once performed by an officer, it was
irrevocable. It was proposed, on the
p irt of colonel Burr, that the marshal
should be interrogated as to those
members of the grand jury, who had
been summoned after the original pan
ne! of 24 had been completed.
Mr. Hay, district attorney, obser
ved, that he confessed himself not very
well prepared to answer the objection,
a similar one to which he had never
heard before, but that he conceived it
to be of no importance, and was wil
li g that colonel Burr should be ac
commodated with a grand jury, to
which no exception could be made. It
appeared to him indeed not proper
to examine witnesses as to the con
• William B Jofrph Ejrglcfton, Edward Pe
gram, John M'Rea, Mumfoid Beverly, John Ambler,
Wilson C. Nicholas, L. W Tazewell, Jame. Preston,
William Daniel, John Brokmferough, Carter Page,
Thomas Brokenbiough, James I’leafants, J. C. Cabell,
Thomas llarrifon, Alex. Shepherd, John Mercer,
James Garnett, John Taylor, Benjamin Hatcher, Rich
trdSwoip,Cuter Scveily, Robc.-t Taylor.
duct of the marshal in this stage -f the
prosecution ; and he knew not why the
objection was now made ; lor it couid
make no difference to the prisoner or
to the United States , since, if any of
the grand jurors were set aside, there
would cither be enough remaining of
those who had been summoned, or the
deficiency would be supplied by tlic
marshal from among the bv-standers.
He submitted tire w hole matter to the
court to determine whether testimony
should be examined concerning the
persons summoned or not.
Mr. Wickham said he meant no
imputation on the marshal, whose in
tentions he doubted not were upright;
but as this was an extraordinary case,
and great attempts had been made to
prejudice the public mind against co
lonel Burr, he was justifiable in taking
every advantage that the law gave him.
He cited 2 Hawk, pleas ol the crown,
p. 307, 16 sect, and 3 Bac. Abr. 725,
to shew that a person bound in a re
cognizance to answer a criminal charge,
has a right to appear and make objec
tions to the grand jury, before they
are sworn. Whether a plea in abate
ment might afterwards be filed for the
error committed, was a question not
necessary now to be determined : nei
ther was it the wish of colonel Burr
to resort to that alternative; for he anx
iously desired that the prosecution
should terminate here and with a grand
jury free from all exceptions*
Mr. Hay then read the law cf Vir
ginia, (Rev. Code, p’ 100, sec. 2.)
and contended that the construction
attempted to be put upon it was more
rigid than could be war ranted by sound
sense and good policy. The intention
of the law was that 24 good men, and
not liable to any of the exceptions
therein stated, should be summoned.
What reason therefore couid be given
to prevent the marshal (it’ he discover
ed that a man whom he had once sum
moned could not attend) from sum
moning another, and thereby securing
the attendance of the full number re
quired. The marshal summonses a
man without knowing the situation of
his private affairs. The man afterwards
informs him that he is subject to un
controlable domestic difficulties ; for
example, that he is going a journey on
indispensable business. Why should
he not excuse him, and summon ano
ther ? M here is the authority to prove
that the functions of the officer who
collects a grand jury cease before the
day on which it is impannelled ?
When the return is made, if a suffi
cient number do not attend, a discretion
is vested in the marshal to appoint o
thers in the room of the absentees: and
is not the principle the same, when he
knows that the 24, whom he has hist
summoned, cannot attend ?
He observed too that the gentlemen
were influenced by a mistaken idea;
for he had understood that the mar
shal, in the instances to which they
alluded, had only enquired of the per
sons said to have been summoned,
whether they could attend or not: ex
psessinghis intention to summon them,
if they could attend ; and, upon their
assuring him of their inability, had ap
plied to others.
Mr. Wickham said that the coun
sel for the United States had not fair
ly met the question. As the authori
ties he had cited before, were short,
he read them ; observing, that his on
ly object in doing so, was to shew
that the objection ought to be made
before the grand jury were impan
nellcd, and therefore must now be
made.
On the merits of the objection he
said that Mr. Hay’s argument concern
ing policy had no weight; that the
words of the law of Virginia being
plain on the subject in question ought
alone to be regarded; that it was suf
ficient to answer ita lex scripta est ;
that policy, however, was on his side
of the question; since great danger
would result from permitting a mar
shal who was appointed by the Presi
dent of the United States, and depen
dent upon him for his continuance in
oifi-c, (however respectable the present
marshal is acknowledged to be) tc
change the members of the grand jury
at his pleasure.
Hie law is, that if the 24 grand ju
rors who have been summoned do no
attend, 16 are sufficient to constitute
a grand jury. Mr. Hay is therefore
mistaken as to the lav/ in supposing
that 24 are necessary. Let it be sup
posed that u day or an hour before the
sitting of the court, the marshal is in
formed that one of the jury cannot at
tend. According to the doctrine con
tended for bv Mr. Hay, he may excuse
him and summon another; but, when
they attend in court, if 16 are present,
he has no such power. If the excuse
is made to the court and they deem it
insufficient, a fine is to be imposed. Is
the marshal to be substituted for the
court ? and can he release from the
fine ?
Upon the whole he insisted that the
enquiry should be made; but declar
ed that he had no intention to wound
the marshal’s feelings, whose error was
certainly unintentional.
Mr. Hay. I said before, that no
good reason existed for not authoris
ing the marshal, where he discovered
it to be certain, that a grand juror could
not attend, to supply the deficiency by
summoning another before the com
mencement of the term. According
to that doctrine, if 12 of those who are
summoned should fail to attend, there
might be no grand jury at all.
The chief justice enquired whether
this question had ever come before the
sL.te courts P
Mr. Randolph answered, that it
never had within his knowledge, al
though he had thirty years ae;o ben at
torney for the commonwealth ; but
there never had been a case like the
present, and therefore no necessity to
make a similar objection had ever been
felt. This case was indeed a peculiar
one ; for in no other, had such a torrent
of prejudice been ever raised and by
means too which xve shall shortly unfold.
lathis case, therefore, it becomes nec
essary to contend lor the rules of which
we now avail ourselves; and in conse
quence of the power vested in the mar
shal, and his liability to be influenced
by the government, great danger would
arise from relaxing them.
The Chief Justice. If this is a
question which has never been decided
in the courts of this state, we must
have recourse to the words of the act
of assembly only. No doubt an excep
tion to the grand jury may be taken
now.
The law of Virginia authorises the
officer to summon 24 men, but says
nothing of any more. He therefore
cannot summon 25. If he desires the
25th man to attend, it ought not to be
considered as a summons; but the act
is void. Most certainly the officer is
not authorised to discharge any person.
Where 16 grand jurors do not appear,
by-standers may be called and not im
pannelled; but if 16 of those summoned
appear, they are to constitute the grand
jury. There is no necessity, there
fore, to vest the marshal with the pow
er of excusing those who say that they
are not able to attend. It is indeed the
custom of the officers in this state, to
exercise a discretion in such cases ;
and no doubt the marshal acted with
the best intentions under an idea that
his conduct was proper; but after he
has summoned any individual he can
not let him off. A plain..;irgurnent in
support of this position is, that the per
son summoned might nevertheless ap
pear though not called by the marshal,
and offer his services to be sworn on
the grand jury, in which case he could
not be rejected. The question de
pends however on the point whether
there was an actual summons, fora con
versation merely preparatory to a sum
mons is a different thing. It is there
fore proper to examine the marshal as
to what has been done.
Major Joseph Scott, the marshal
of the district, was thereupon examin
ed. He said that he had shewn the
judges themselves a letter from Mr.
JohnTayior, of Caroline, who had been
summoned, and they had said that his
excuse, expressed in that let'er, was sufftr'ert..
Ha had therefore summon 4 color el James
Barbour, ol Orange, in hi •• room ; but ci:d rot
say, that the judges had directed him to do to,
alt ho* he conceived it to be his duly, in conse
quence of what had passed between him u 4
them. He acknowledged also, that Mr. Joint
M‘Rae, who had been summoned, having
since that time left the state he had, under sim
ilar impressions, summoned doctor Wiliiuta
Fousltec.
The court derided that Mr. Barbour and
doctor Foushee had not been legally added to
the pannel of the grand jury; they were there
fore withdrawn.
The pannel hating been reduced to sixteen,
by the removal of those gentlemen impropeily
summoned, colonel Burk expressed some ie~
giet at exercising the privilege of challeng
ing two others for favor. If the right uas con
ceded, it might be necessary to appoint trie;*,
and go into an examination of witnesses. ll©
wished it to be distinctly understood, that he
claimed the same right of challenge in this stag©
of the business, as if the cause were now before
the petit jury.
Mr. Botts presumed that there could be r.o
question as to the right. Even in civil cases
this was a cause, though not a principal cause,
of challenge. The law which had been read
was explicit in its application to this case.
Our cause cf challenge must be made out by
testimony.
Mr. Hay believed the law to be as stated otr
the other side. No objection would be made
by him to the course which the gentlemen
wished to pursue. Colonel Burr then pro
ceeded to name the persons and c ausesof chal
lenge. He first mentioned William B- Giles
With respect to him there were two causes,
the first of which was of public notoriety Mr:
Giles while a member of the senate had voted
for the suspension of the writ of habeas corf usi
The constitution had declared that a suspen
sion of this writ could only be warranted in ex
treme cases ; and that by pronouncing on the
expediency of that measure, Mr. Giles had in
evitably formed an opinion as to the designs
imputed to him. Further, he would endea
vor to establish,by testimony, that since that
time dir. Giles had said that the documents
furnished evidence of his (Burr’s) guilt of th©
highest grade.
Mr. Botts added a few observations expla
natory of the law, and expressed a firm con
viction, that from the intelligence, the virtue
and patriotism of Mr. Giles, he would not sup
pose that the objections were made v itha view
to wound his feelings.
Mr. Hay observed that if the gentlemen ob
jected to were willing to be withdrawn, be had
no objection. [Hero Mr. Giles made a very
handsome and impressive address to the court,
which neither our limits not present plan will
permit us, at this time, to insert. We will,,
however, briefly remark, that he said, it had
been an uniform rule with him nciiher to soli
cit nor refuse an appointment to any office
which his country thought him qualified to fill.
It was a very unpleasant thing for him to be
summoned as a grand juror at the present
term ; but having been summoned, he had re
solved to wave all objections of a personal na
ture. He regretted that there had not been
energy enough in the House of
tives in Congress to suspend the writ of habeas
cor/ivs —a measure which he then thought, and
still thinks, the state of the country required.
Upon this case he. was about to pronounce his.
real impressions. He meant ultimately to
withdraw, but wished to remove certain im
pressions which had been made.
The Chief Justice observed that two cir
cumstances must concur, in order to disqualify
him as a juror. The one was, that he must
have made up his opinion on the case; the other
was, that he had declared that opinion.
Mr. Giles wished to explain the state of his.
own mind. He had made up no opinion. H©
wished, indeed, that the public mind should be
satisfied, and that the true character of colonel
Burr’s transactions should be ascertained.
Colonel Wilson Cary Nicholas was al
so objected to by colonel Burr, on the ground
ofa personal enmity, sufficient he presumed, to
blind the judgment of the wisest men.
Colonel Nicholas observed, that upon being
summoned by the marshal, he had pressed
him in the most formidable manner to release
him. He doubted the propriety of his serving
ir. this particular case, as the various relations
in which he had stood as a public character
to colonel Burr, might create some bias on his
mind. That he was in congress with colonel
Burr when the nomination of president and
vice president was made, which terminated in
an election that presented Mr. Jefferson and
colonel Burr with an eaqual number of suffra
ge ior the decision of congress. When colo
nel Burr went to the western country his sus
picions were excited. He gave, perhaps, too
ready a credit to the evidences that had transpir
ed ; but which was not sufficient to form a con
clusive opinion. The marshal refusing to ex
cuse him, he was obliged to attend. He did
not choose that wrong impressions should be
made, with respect to his motives, had he been
absent. Attempts, he said, had been made to
intimidate him. He had been told that if ha
attended as a juror, such representations
would be made of his public conduct as would
be highly injurious to his feelings. Unde*
all these circumstances he felt some difficulty.
He had consulted lawyers of the first talents,
who informed him that the court would not,
for such causes, excuse him. He felt embar
rassment from two considerations ; the one,
was, that his retiring might have sanctioned
those objections; the other was, that he did
not wish to shrink from the performance of w
public duty. But he contented to r©;i-r.