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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.