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Columbian Centinel.
*he present instance. Never before
did ho witness the public mind so much
inflamed by the fore# of error and pre
judice as it was in this case. He had
lull confidence in the integrity of the
Marshal, but a time might come when
men less virtuous than he might exer
cise that privilege which he now con
tended did not belong to that public of
ficer. When such a torrent of preju
dice had evidently taken hold of the
public mind, it was proper that Colonel
Burr should have all the rights which
the law gave. The Chief Justice de
livered his opinion agreeing to the
proposition of Colonel Burr and his
counsel.
Col. Burr next claimed of the Court,
the right of challenging the Grand Ju
ry ; he contended that he had the same
privilege in objectioning to Grand Ju
rors, as he might have to the Petit
Jury.
Mr. Hay denied the right of the ac
cused, making objections to any indi
vidual on the pannel. Mr. Botis said
that the law was express upon the sub
ject, that the cause of challenge would
be made out, although he assured the
Court, no reflection whatever was in
tended on the Jurors. He then read
the section of the law as regards this
privilege, and endeavored to shew how
the matter stood, both by common law
and stutute. Mr. Hay withdrew his
objections—Col. Burr. “ There are
two individuals on the pannel, against
whom I have cause of challenge-—one
of these, the matter being public and
Ol notoriety, <t«»vo not furjim'u j**nol'
The cause of challenge against the oth
er, however, requires to be substantiat
ed by proof. The first that I challenge
is Mr. Giles. It is well known that
this gentleman while a Senator of the
United States, hail occasion to pro
nounce an opinion respecting my guilt,
on a motion which was made for the
suspension of the Habeas Corpus act.—-
This act the Court are satisfied, can on
ly be suspended in cases of actual rebel
lion and insurrection. As Mr. Giles
therefore voted for the suspension of
the Habeas Corpus act, it is to be pre
sumed, that lie felt a conviction of my
guilt. Besides, I think it could be es
tablished still farther sir, that Mr. Giles
has since that period, confirmed the
opinion which he then gave.
Mr. Botts said he presumed there
could be no necessity for adding to what
Col. Burr had said.
Mr. Hay proposed that if any of the
Grand Jurors against whom Colonel
Burr or his counsel might see cause of
challenge, he should have no objec
tions of their withdrawing of their own
accord.
Col. Burr assented to this.
Mr. Giles then rose and spoke about
twenty minutes, but in such a low tone
of voice, it was impossible to hear a
sentence uttered.—We are informed,
however, by those who stood next to
him, that he offered several reasons for
his conduct while a Senator, in voting
for the suspension of the Habeas Cor
pus act, and that he expressed his re
gret that there was not energy enough
among the people on that occasion, to
support the Senate in the measure....He
also seemed irritated at the cause of
challenge, which was offered, and ap
peared to think, it was intended as a
reflection against his integrity.
Colonel Burr explained. He assur
ed the gentleman, it was very far from
his intention to hurt his feelings, or that
he did not impute any blame to him for
tli: opinion lie had formed ; but having
formed thatop'nion, Sc having | rinoun
ced publicly upon his guilt, it was im
possible he could entirely divest him
self of a bias against him. That it was
notin the power of human nature, after
having formed decided sentiments, on
any subject, and for a length of time
continuing to entertain these sent'- i
m - nts, suddenly to lay them aside, and
to judge with the same impartiality, as
if they never had been formed. He la- i
merited also, that such was the state of i
society, and prejudice and error, had
been so much afloat in the case now be
fore the court, that he saw very little
prospect of the Grand Jurors having
their minds entirely free from opinions
on the sui.ject, on which they were cal
led to decide. The other Grand Juror
who lie intended to challenge, was Wil
son Carey Nicholas.—This gentleman
he had been informed, had expressed <
himself on several occasions in very de
cided terms against him. i
Mr. Nicholas addressed the court,
and mentioned th*t he had observed to i
Major Scott when summoned, that he i
deemed himself perhaps an unfit per
son, to be empaiindled on account of i
the part he had taken last session in !
Congress, and he had likewise assigned '
to Major Scott, as reasons against being i
summoned ; the opinion he had formed, i
ancr observations which he hd fre-j
quenlly expressed in regard lo the
conduct of Col. Burr.
Mr. Nicholas also observed, (hat be
in? summoned, he had several reasons
for obeying the orders of the Cmlt. Ist.
That he wished to deliver peisonally,
his sentiments as to the propriety of his
serving as a Grand Juror. 2dly. That
he had received an anonymous letter,
containing threats against his character,
in the event of his attendance ; that
these threats, which, doubtless were
meant to intimidate him, had a contrary
effect; and had determined him in the
resolution he had formed—of attending.
The Court was of opinion that every
person who had formed an opinion on
the subject in question, was an impro
per Juror, and ought to be rejected.
Mr. John Randolph, being in Court,
was called upon to serve as a Grand
Juror, and nominated the Foreman of
that Body.
Mr. Randolph made a few remarks
of the following nature :
“ I have formed no opinion on the
case now betore the court, fori do not
yet know what that case is ; but I have
entertained and formed sentiments in
regard to the gentleman who now stands
before us. Yet, without arrogating to
myself any extraordinary powers, I
think I could divest myself of any pre
possessions I may have formed in res
pect to the proceedings of Colonel Burr.
It is true I have had strong preposses
sions ; but I do not recollect, Sir; having
PVfi- on oninion, I certainly
nc\ et,Sir, dcliv (2 red an opinion in decid
ed terms.”
Colonel Burr begged leave to make
a few remarks on some observations
which fell from Col. Nicholas. He sa id
Colonel Nicholas observed that he re
ceived an anonymous letter, signifying
that, in the event of his attending as a i
juror, such an account would be given of
his conduct and character, as would be
highly injurious to his interest. Col.
Burr declared that suchathreat bad nev
er been sanctioned by him, and whoever
might be the authors of it, that they
were no friends to him, and it must have
originated from his enemies; he dis
claimed all knowledge and acquaintance
with the circumstance.
Major F.ggleston then addressed the
Court, praying to be excused. He gave
as his reason, that on reading General 1
Eatons’s deposition, and the other doc
uments which were laid before Con
gress, he had felt and expressed senti
ments expressive of a belief of the guilt
of Col. Burr. He did not doubt, how
ever, but the opinion which lie had
formed might be altered on hearing
farther testimony; but he imagined
that from the impressions which were
made upon his mind, and which possi
bly could not be entirely eradicated,
that he was an improper person to act
as a Juror in the present case, and was
therefore desirous the court would ex
cuse him.
Col. Burr remarked, that from the
extreme candor which the gentleman ■
had shewn, in thus voluntarily stating '
the sentiments which he had imbibed,
he was satisfied the opinion which he
would give on hearing all the evidence !
that should be offered, would be as free |
from prejudice, as perhaps Uny person
which might be found. He therefore
hoped the gentleman would continue as
one of the Grand jurors.
Doctor Foushee, on beingcalled, ob
served that from some circumstances, 1
he felt a difficulty about the propriety of
his serving. He stated that after having
read the President’s Message, the testi-1
mony of Gen. Eaton, and the several
publications which had appeared in the
public papers, respecting Col. Burr,
he had frequently since declared his
opinion of Colonel Burr’s guilt—He
oelieved. however, he could as easily di
vest his mind of prejudice as any other
man ; and it on the perusal of other evi
dence, it appeared that the reports in
circulation were false, that the opinion
which he had formed, would certainly
be changed. That his present opinion
might be said to be a hypothetical one,
and predicated on the supposition of the
tnith of Gen. Eaton’s testimony, and
similar publications.
Col. Burr remarked, that as the evi
dence which to be laid before the Grand
Jury, w’ould be altogether testimony,
on the part of the Commonwealth, that
so far from tending to alter the opinion
of Doctor Toushce, had appeared to
hate formed, it would tend to strength
en still more his belief; that the evi
dence the Grand Jury had to consider,
was entirely an exparte evidence, and
that no testimony to abate the impres
sion which the gentleman had imbibed,
would be offered. He therefore trusted, :
the Court would suffer Doctor Foushee '
to withdraw. (
Mr. Wickham and Mr. Edmund
Randolph, respectively delivered their
opinions as to the impropriety of the
Doctor serving as a grand Juror, from
the statement which he had made.
Mr. Hay replied, if such objections
were to be sustained, that the Court
might at once discharge Col. Burr of
his recognizance, and set him at liber
ty for he would affirm, that no Grand Ju
ry could be empannelled, the majority of
whom had not formed or expressed
some opinion from the publications
which they had read respecting his
guilt. That Col. Burr and his proceed
ings, had been the constant subject of
conversation and newspaper disccus
sion, for the last six months, and that
it was impossible even to find a boy of
the age of sixteen, who had not formed
some opinion, either of his innocence
or guilt.
Mr. Randolph and Col. Burr again
replied, and the Court on consideration
suffered Doctor Fouchee to withdraw.
Col. James Barbour being next call
ed stated some impressions which he
had felt of a similar nature with those
described by Doctor Foushee, but
they were not deemed sufficient by the
court.
The following gentlemen were then
sworn on the Grand Jury.
John Randolph, Foreman, Joseph
Eggleston, Littleton Waller Tazewell,
Robert Taylor, William Daniel, jun.
John Mercer, Edw’ard Pegram, Mum
ford Beyerly, John AuibWr, Thomas
Harrison, Joseph C. Cabell, James
Pleasantu, junr. John Brockenbrough,
Alexander Shepherd, James Barbour,
James M. Garnett.
The Chief Justice delivered a Charge,
the reading of which occupied about a
quarter of an hour, but from the noise
which prevailed it was impossible in the
i station where we were to hear with any
precision the particulars.
After the Grand Jury had retired,
Col. Burr addressed the Court on the
propriety of specially instructing the
Jury in regard to the admissibility of
certain evidence, which he supposed
would be laid before the Grand Jury, by
the Attorney of the United States.
Mr. Hay opposed the application,
he said he should never agree to it, and
he trusted the Court also would never
sanction such a precedent. That Col.
Burr stood before the Court on the
same footing as any other citizen, and
he hoped the Court would not distin
guish between his case and that of any
other.
Col. Burr replied, and endeavoured
to shew the necessity of the Jury, being
especially instructed in the present case,
| that there were many points on which
the best informed might be ignorant,
or entertain doubts. That the prose
cuting Attorney, had mistaken his
meaning, if he supposed he wished to
be considered as standing there on a
different footing from other citizens.
That he viewed himself only as entit
led to the right which belonged to eve
;ry citizen. He said it was not his in
| tention to condemn the charge which
i bad been given by the Court ; but he
j was desirous that many things which
i he was apprehensive might come un
j der the consideration of the Grand
i Jury, should be fully explained by the
Court*
Mr. Wickham, Mr. Randolph and
Botts severally spoke in behalf of this
proposition of col. Burr; but the ques
( tion was referred for further discussion
on Mr. Hay pledging himself that no ev
idence should be laid before the Grand
Jury, and no step taken, without notice
being first given to Col. Burr and his
Counsel.
The names of the witnesses sum
moned in behalf of the United States
. were then called over, and the follow
ing were recognized lo appear on Sa
turday.
John G. Henderson , Ambers Smith ,
Hugh Phili/iSy William Eaton , Erick
Bollman , Samuel Swartivout, James Reid ,
William Duane , George Morgan, Leaner
Domun , William Sjicnce , Thomas Pete
kin, Elias Glove , Samuel Fair lamb , James
J<. Donaldson.
Saturday, May 2Sd, ISO7.
Present the same judges as on yes
terday.
The following witnesses appeared in
behalf of the United States, and were
bound in a recognizance of one thous
and dollars each, for their attendance
on the court.
John G. Henderson, Alexander Hen
derson, Eric Bollman, Samuel Swart
wout, Robert Spence, William Eaton,
John Morgan, George Morgan, and
Thomas Morgan.
The names of the following persons,
summoned as witnesses on the part of
the United States, were called, but they
did not appear.
Ambrose Smith, Hugh Phelps, James
Read, "William Duane, Leonore Do
vaine, Thomas Pcterkin, Elias Glover,
Samuel Fairlamb, James Lowry Don
aldson, William Wilson and William
C. Meade.
1 he counsel for Col. Burr observed,
that, if it was the pleasure of the cosrt,
the discussion intended for this day on
the propriety of giving special instruc
tions to the grand jury, would tak?
place on Monday.
This proposition was assented Vo.
1 he grand jury appearing pursuant
to adjournment, the Chief Justice in
formed them that the absence of a wit
ness deemed important by the counsel
for the United States and the uncer
tainty of his arrival at any particular
period, made it necessary that they
should be adjourned. They were ac
cordingly adjourned till Monday.
Some conversation ensued between
the court and bar with respect to the
propriety of adjourning the grand jury
to some distant day in the term.
The Chief Justice stated it as his
opinion that as there was no necessity*'
for calling over the names of the grand
jury every day, they might be consid
ered in contemplation of law still in
their chambers till they were called in
to court; and that it might be under
stood that they would not he called till
some particular clay. This, he said,
was the practice in some of the States,
nor did he know any sound objection
to it. But, unless it was considered
by counati on both sides that this
course was free from all exception, he
should be unwilling, on any account, to
adopt it.
The counsel for col. Burr stated that
they knew no objection to the measure,
but were unwilling to express any de
cided opinion, especially as Col. Burr
was not then in court.
The Chief Justice said that he felt
much inclined, to accommodate the
grand jury ; but until farther consider
ation ot the subject, they would stand
adjourned till Monday next.
Monday, May 25th, 1807.
Present the same judges as on Saturday.
The grand jury appeared in court; and on
its being-stated by the foreman that thev had
been two days confined to their chambers, and
had no presentment to make, or bills before
them; Mr. Hay observed that he had two bills
prepared, but wished to suspend the delivery
of them, till the witnesses were called, and it
was ascertained that all the evidence relied
upon by the counsel for the prosecution, could
be had. He thought it probable, that, in the
cours6 of a week, he should hear of Gen. Wil
kinson, who was still absent, and whose testi
mony was deemed very important.
A further conversation took place as to th*
propriety of adjourning the grand jury to a
distant day of the term ; and Monday next was
mentioned as the time when they would pro
bably be required to attend.
The Chief Justice observed that from the
researches which he had been enabled to make,
he was still inclined to favor the opinion which
he had expressed on Saturday, that there was
no necessity for calling the grand jury every
day. This opinion was the result of his reflec
tions upon principle, not from any positive au
thority on the subject.
Mr. Wickham having staged that as a num
ber of witnesses were attending at a considera
ble distance on the part of col. Burr, it might
be important to know when the grand jury
would be again called; Mr. Ilay observed that
a motion might he made which would render
their presence necessary even on that dav.
Mr. W ickham then requested that before
any order should be taken in relation to the ad
journment of the grand jury, the counsel for
the United States might state the nature and
object of his motion.
Mr. Hay. The object of my motion is to
commit Mr. Burr, on a charge of high treason
against the United States. On his examina
tion, there was no evidence of an overt act,
and he was committed lor a misdemeanor on
ly. 1 lie evidence is different now.
Mr. Wickham hoped that the application
might be made, and counsel heard.
Mr. Hay. Gentlemen may be assured that
they will be apprised of the application; but
is it their wish that the application should be
made, and the subject discussed in presence of
the grand jury ?
Col. Burr. The gentleman has
the object of my counsel, as far as it is com
prehended in my motion. The design was
not that the grand jury might hear, but that
the impropriety of mentioning the subject in
the presence of the grand jury might be made
more manifest. I think it may be demonstrat
ed that while there is a grand jury attending
before whom a question may be determined,
there is an obvious impropriety in submitting
it to any other tribunal for any other purpose.
Th« grand jury were requested to withdraw.
Mr. Hay renewed his application, stating
more at large tne grounds on which it was
made. Ihe discussion of this question took
up the time ot the court till nearly five o’clock,
when it adjourned without coming to any de
cision.
During the discussion the grand jury re
quested to he br.ought into court; and if it
should be deemed improper for them to hear
any arguments which might be addressed to
the court, they wished them to be suspended
while they were present.
They were accordingly brought into court,
and a wish being expressed that they would
not listen to the discussion of the subject then
before the court, they were adjourned until the
next day, twelve o’clock.