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

of miles distant; that the jury ought to know from the court how much of this vast mass of testimony ought to have a legal application.

Mr. HAY inforced his former objection, that if the law was to be laid down by the court, they would certainly wish to have it explained by both sides; that the gentlemen on the other side wished the court to decide without argument, on matters the most important; that as the jury were very intelligent, and the court had already given a general definition of principles, the correct course was to proceed in the usual way, without wasting time in unnecessary argument.

Mr. BOTTS said, that in a case of such unexampled importance, which was sufficiently attested by the busy crowd around them, the noise in the country, the curiosity of the people, and the activity of the government, no reasonable objection could be made to even wasting a few minutes; that it was a case where the prisoner required, and ought to receive, the benefit of every legal right which the court could furnish.

CHIEF JUSTICE observed, that there would certainly be a difficulty in the court's giving dissertations on criminal or penal laws; that he was not prepared at present to say, whether the same evidence was necessary before the grand jury as before the petit jury; whether two witnesses to an overt act were required to satisfy a grand jury: this was a point which he would have to consider. That he had not made up his mind on the evidence of facts said to be done in different districts, how far the one could be adduced as evidence in proof or confirmation of the other; but his present impression was, that facts done without the district, may be brought in to prove the material fact said to be done within the district, when that fact was charged.

The question was postponed for further discussion, on Mr. Hay pledging himself, that no evidence should be laid before the grand jury, without notice being first given to colonel Burr and his counsel.

Several witnesses on behalf of the United States were called and recognised to appear to-morrow, at eleven o'clock A. M. The court adjourned till then.

SATURDAY, 23d May, 1807.

Present the same Judges as on yesterday.

The proceedings of yesterday being read, and the names of the jury called over, several witnesses on the part of the United States appeared and were recognised to attend on the court.

The counsel for colonel Burr observed, that if it met the approbation of the court, the discussion on the propriety of giving special instructions to the grand jury would take place on Monday next.

This proposition was assented to, and it was understood that Mr. Burr's counsel were to give due notice of the propositions they intended to submit.

The grand jury appearing pursuant to adjournment, the chief justice informed them, that the absence of general Wilkinson, a witness deemed important by the counsel for the United States, and the uncertainty of his arrival at any particular period, made it necessary that they should be adjourned.

Some conversation ensued between the court and bar, with respect to the propriety of adjourning the grand jury to some future 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 considered in contemplation of law, still in their chambers till they were called into court, and it might be understood that they would not be called till some particular day. 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 counsel on both sides, that this course was free from all exception, he should be unwilling on any account to adopt it.

The counsel for colonel Burr stated that they knew no objection to the measure, but were unwilling to express any decided opinion, especially as colonel Burr was not then in

court.

The chief justice said, that he felt much inclined to accommodate the grand jury; but until further consideration of the subject, they would stand adjourned till Monday following. The court adjourned till then accordingly.

MONDAY, 25th May, 1807.

The court met according to adjournment: present the same judges as on Saturday.

The grand jury appeared in court, and on its being stated by their foreman, that they had been two days confined to their chambers, and had no presentment to make or bill before them, Mr. Hay observed, that he had two bills prepared, but wished to postpone the delivery of them till the witnesses were present, and it was ascertained that all the evidence relied on by the counsel for the prosecution could be had. He thought it probable, that in the course of a week, he should hear of general VOL. I.

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Wilkinson, who was still absent, and whose testimony was deemed very important.

A further conversation took place, as to the propriety of adjourning the grand jury to a distant day of the term, and Monday next was mentioned, as the time when they would probably be required to attend.

The CHIEF JUSTICE observed, that from the researches which he had been able to make, he was still inclined to favour 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 reflection upon principle, not formed from any positive authority on the subject.

Mr. WICKHAM having stated, that as a number of witnesses were attending at a considerable distance, on the part of colonel Burr, it might be important to know when the grand jury would be again called.

Mr. HAY observed, that a motion might be made, which would render their presence necessary, even on that day.

Mr. WICKHAM then requested, that before any order should be taken in relation to the adjournment 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 examination there was no evidence of an overt act, and he was committed for a misdemeanor only. The 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 it should be made, and the subject discussed in presence of the grand jury?

Colonel BURR.-The gentleman has mistaken the object of my counsel as far as it is comprehended 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 demonstrated, 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.

The grand jury were requested to withdraw.