Was it not known to the framers of our constitution, who had the volume of human nature before them, that the time would at length arrive, when some individual would be held up as a mark to public indignation, and sacrificed as a victim to popular phrensy, and political jealousy? Was it not to prevent this, that the constitution, originally forbade the legislature to change the law of treason, by fixing it within precise and well defined limits? Was it not for this cause, that a subsequent amendment was introduced, declaring, that " in all criminal prosecutions, the accu sed shall enjoy the right to a speedy and public trial by an impartial jury?" I contend, that all these salutary precautions have been taken to guard against the pernicious effects of this public opinion, and that these gentlemen being prejudiced against the accused, cannot be considered as impartial within the meaning of

the constitution.

Mr. RANDOLPH, at the request of the court, read judge Chase's answer to the second article of the impeachment against him, which arraigns his decision in the case of Basset. See appendix to the Trial of Judge Chase, pages 19, 20, and 21.

Mr. RANDOLPH then observed, that he had not intended to say any thing on the subject now discussed, because he expected, that objections would have been made to particular individuals only; but that he had since seen, that a most serious blow was meditated at the whole system of jury-trial. For, said Mr. Randolph, whether accident, or Heaven have given us this boon, it is our duty to preserve pure and perfect, and transmit unimpaired to posterity, this only palladium against oppression. Vain will be all this parade about the trial by jury, if a judge will calmly sit on the bench, and connive at its violation. If the courts do not defend this sacred right, can it be said that any man's life is safe? The trial by jury is not a beneficial reality, but a mere fiction of law. Away with justice; away with courts: tell me not that I am safe in my own habitation, if a doctrine like this be to prevail. It is a mockery sir, to talk of the benefits of the trial by jury, if men whose minds are impressed with preju dices against a person accused, shall decide his fate! Can they be impartial, who on a charge consisting of several points, have made up their minds against him on all, except a little fragment? Would it be conformable to the equal administration of justice, to force such a jury on him?

Analogies have been stated between other crimes and the charge now before the court. Other gentlemen have quoted the cases of murder and burglary. To these I shall add the crime of uttering false money, knowing it to be false. If a man brought forward as a juror on the trial of a person charged with this of fence, were to state, that he knew not whether the accused pas

sed the money or not, but that he was certain, he must have known it to be false, would he not be rejected as an incompetent juror?

But we are told, on the authority of Hawkins, chap. 43. ser. 28. that by the law of England, it has been adjudged, that "if a juror has declared before hand, that the party is guilty, or will be hanged, or the like, it is a good cause of challenge; but if the juror made this declaration from his knowledge of the cause, and not out of any ill will to the party, it is no cause of challenge;" and in sect. 29. "that it hath been adjudged to be no good cause of challenge, that the juror hath found others guilty on the same indictment."

Sir, does not this doctrine strike your mind with astonishment? Not if you advert to the reference made in support of it. He has taken a posterior doctrine in preference to an anterior; so that it would seem, that the latter had been a revocation of the former. But examine it. What does he refer to? To the year books in the time of Henry the 7th, when liberty had not been established in England. This very Hawkins, in whose bloody doctrine confidence is now placed, instead of advocating the more liberal doctrines of his own day, on the subject of juries, refers to the reign of the Tudors, when not a spark of liberty existed. Were he correct in his assertion, that this was the law of England, what influence ought it to have on the practice in this country; where the terms of the constitution are so explicit and imperative, that the accused shall enjoy the right to a speedy and public trial by an impartial jury? Will our courts subscribe to his inferences? He had advanced a contrary doctrine in a preceding section. Will you say that he shall be justified in supporting and drawing contradictory principles and conclusions? If he maintain positions which are perfectly inconsistent, ought they not to be tried by a critical examination of the authorities to which he refers? and if the court find that his assertions are not fairly deducible from the authors relied on, will they not put him aside and declare that he has no authority on this point? If the gentleman who quoted him, had looked at the 27th section of the same chapter, he would have found all the doctrines on which he commented so fully, entirely destroyed. He there says, that "this exception against a juror, that he hath found an indictment against the party for the same cause, hath been adjudged good; not only upon the trial of such indictment, but also upon the trial of another indictment or action, wherein the same matter is either in question, or happens to be material, though not directly in issue." So that wherever it is the same question, on which he decided in a former indictment, or happens to be a material point, he is to be excluded. Is it not all-important, what the intention is? Is it not a material point? According to

this section, if it be a material point, he is to be excluded as a juror, because he had made up his mind before on the same subject. It is not merely that if he decided on the whole, but if he have only decided a material point of the same cause, he is incapacitated from serving as a juror.

Mr. Wickham has anticipated me, in shewing the effect of different jurors acting on a conviction of different parts of the guilt; that one juror having formed his opinion on one point, and another on another, they may compromise, till by mutual complacency and acquiescence, they make the accused the victim, by a verdict of condemnation.

I will make one observation on the case of Horne Tooke, to shew that Thompson did not attend the trial, and that the construction which gentlemen put on it, is incorrect. If Thompson had been present, the law applying to the case, was different from what they contend it to be. It is said, that a friendship or intimacy with a party in a suit, is not a cause of exception to a witness, though it always is to a juror. Some books say, that if a juror be returned by a party, he is disqualified from serving. The law with respect to the admission or exclusion of a juryman, must vary according to the circumstances, and the nature of the influence, which a party in a cause has over his mind. They suppose the question before the judge to have been, "Shall he be excused from serving as a juror or not?" It was not so. It was, whether he should be excused for non-attendance? A mere acquaintance with another for thirty-four years, does not exempt a man from being on a jury to try that other; but if the intimacy and friendship be so great, as to create an influence over him, he would be rejected of course.

I shall not detain the court any longer, but shall conclude with a hope, that you will preserve the purity of jury-trial from violation; that you will take more than common pains to preserve it free and unfettered. I appeal to the volume of human nature; I appeal to the human heart. I could appeal to Mr. Hay's great tribunal itself, to determine, whether there ever were a man who could dispassionately and impartially try a cause, one half of which he had already prejudged?

Mr. MARTIN then observed, that in Tooke's case, no challenge was stated to have been made to Thompson the juror, by either the king or the prisoner; and of course the question could not have occurred, whether he should be excused from serving on the jury.

The CHIEF JUSTICE then delivered the following opinion. The great value of the trial by jury, certainly consists, in its fairness and impartiality. Those who most prize the institution,

prize it because it furnishes a tribunal, which may be expected to be uninfluenced, by any undue bias of the mind.

I have always conceived, and still conceive, an impartial jury as required by the common law, and as secured by the constitution, must be composed of men, who will fairly hear the testimony which may be offered to them, and bring in their verdict, according to that testimony, and according to the law arising on it. This is not to be expected, certainly the law does not expect it, where the jurors, before they hear the testimony, have deliberately formed and delivered an opinion, that the person whom they are to try, is guilty or innocent of the charge alleged against him.

The jury should enter upon the trial, with minds open to those impressions, which the testimony and the law of the case ought to make, not with those preconceived opinions, which will resist those impressions.

All the provisions of the law are calculated to obtain this end. Why is it that the most distant relative of a party cannot serve upon his jury? Certainly the single circumstance of relationship, taken in itself, unconnected with its consequences, would furnish no objection. The real reason of the rule is, that the law suspects the relative of partiality; suspects his mind to be under a bias, which will prevent his fairly hearing and fairly deciding on the testimony which may be offered to him. The end to be obtained is an impartial jury; to secure this end, a man is prohibited from serving on it, whose connexion with a party, is such as to induce a suspicion of partiality. The relationship may be remote; the person may never have seen the party; he may declare that he feels no prejudice in the case, and yet the law cautiously incapacitates him from serving on the jury; because it suspects prejudice; because in general, persons in a similar situation, would feel prejudice.

It would be strange if the law were chargeable with the inconsistency of thus carefully protecting the end from being defeated by particular means, and leaving it to be defeated by other means. It would be strange if the law would be so solicitous to secure a fair trial, as to exclude a distant unknown relative from the jury, and yet be totally regardless of those in whose minds feelings existed, much more unfavourable to an impartial decision of the case.

It is admitted, that where there are strong personal prejudices, the person entertaining them is incapacitated as a juror; but it is denied that fixed opinions respecting his guilt constitute a similar incapacity.

Why do personal prejudices constitute a just cause of challenge? Solely because the individual who is under their influence, is presumed to have a bias on his mind, which will prevent

an impartial decision of the case, according to the testimony. He may declare that notwithstanding these prejudices, he is determined to listen to the evidence, and be governed by it; but the law will not trust him.

Is there less reason to suspect him who has prejudged the case, and has deliberately formed and delivered an opinion upon it? Such a person may believe that he will be regulated by testi mony, but the law suspects him, and certainly not without reason. He will listen with more favour to that testimony which confirms, than to that which would change his opinion: it is not to be expected that he will weigh evidence or argument as fairly as a man whose judgment is not made up in the case.

It is for this reason that a juror who has once rendered a ver dict in a case, or who has been sworn on a jury which has been divided, cannot again be sworn in the same case. He is not sus pected of personal prejudices, but he has formed and delivered an opinion, and is therefore deemed unfit to be a juror in the cause. Were it possible to obtain a jury without any prepossessions whatever, respecting the guilt or innocence of the accused, it would be extremely desirable to obtain such a jury; but this is perhaps impossible, and therefore will not be required. The opinion which has been avowed by the court, is, that light impressions which may fairly be supposed to yield to the testimony that may be offered; which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to him. Those who try the impartiality of a juror, ought to test him by this rule. They ought to hear the statement made by himself or given by others, and conscientiously determine, according to their best judgment, whether in general, men under such circumstances, ought to be considered as capable of hearing fairly, and of deciding impartially, on the testimony which may be offered to them; or as possessing minds in a situation to struggle against the conviction which that testimony might be calculated to produce? The court has considered those who have deliberately formed and delivered an opinion on the guilt of the prisoner, as not being in a state of mind fairly to weigh the testimony, therefore as being disqualified to serve as jurors in the case.

and

This much has been said relative to the opinion delivered yesterday, because the argument of to-day appears to arraign that opinion, and because it seems closely connected with the point which is now to be decided.

The question now to be decided, is, whether an opinion formed and delivered, not upon the full case, but upon an essential part