Berkeley and Jefferson intelligencer. [volume] (Martinsburg, Va.) 1802-1810, 1807-06-12

n s So. Il IL =
MARSHALL feelings, whose error was Ger.
certainly uninientional. 81 me- s.s
Mr.. Hay. I said before thar no rood
reason existed for NOT ,authorising the
marshal, where he discovered il 70 Be
certain that grand iurorcould not attend,
to supply the deficiency BY summoning
anotherbefore the commencement ofthes
term. According 70 that doctrine, If.
- Of those Who are summoned should
fail % attend their mightbe no grand ju-
~ II al. ~. a.
The chef justice enquired whether
this question had ever been before the
state courts IA =
Mr.. Raudobh answered thstit never
had within his knowledge, although he
had 50 ,rafs ago been attorney for the.
commouEealth but there had never
been sease like the present; and there:
fore no necessity to make similar OBJ
jsetion had ever been felt. This case
was indeed Apeculiar one, for in no other
had such atosrens ofPrejudiee been ever
raised and By means too which me shaH
shortly nnt oii. % this case therefore 1.-THE.
comes necessary 10 contend for the rules
Of which We nowavail ourselves, and in
consequence ofthap .wer vested in the
marshal and his liability to be influenced
by the governments, great danger would
arise from relaxing them. - --.-e--
The chief Justice. II this is ques.
ton which has never been decided in the
courts Of this state We must have re-
course tothe words Of the act of assem-.
bly, only. No doubt an exception 70 the
grand Jury may be taken new. 4 ~. -.
The law Of Virginia authorizes the
officer 70 summon a. men, but says
nothing Of any more. He therefore can.
not Summon IS. If he desired the 25tli
man to attend, it ought no. to be consid-
cred as summons but the act is void.
Most certainly the officer Is not authori-
Fed to discharge any person. When
rs grand jurors do not appear by-stan.
ders may be called and impanneIied
hut If 16 OF those summoned do appear
they arc to constitute the grand fury.
There nonecessity therefoTe lowest the
msEshA With the power ofexcusing those
who say they are not able TO attend. II
is indeed the custom of the officers in this
state to exercise discretion in such ca
ses; and no doubt the marshal acted
with the best intentions under an idea
that his conduct was proper but after
he has summoned any individualhe can.
not le, him of. A plain argument in
support Of this position is thar the person
summoned might nevertheless appear
tho not called by the marshall and offer
his services to be sworn on the grand III.
ry in which case he could not be reject.
ed. The question depends however on
the point whether there was an actual
summon<, for conversation merely pre-.
paratory to sum mons is adiferrnt thing.
Il is therefore proper to examine the
marshal as to what has been done.
Maj. Joseph Scott the marshal of the
dissrict was .lthereupon examined He
said that he had showed the iudgesthem.
selves letter from Mr.. John Taylor of
Caroline, who had been summoned and
they had said the excuse expressed that
in that letter was SUFFICIENT. He had
therefore summoned colonel lanes Bar
qour, Of Orange in his room but did
not say that the judgeshad directed him
to do 90, although he conceived il TO be
hi. duty in consequence Of what had pas.
sed between him and them. He &C.
knowiedged also that Mr.. John M'Rae,
who had been summoned, having since
that time left the state, he had under
similar Impressions summoned DR..
WIN. Foushee. sS
The court decided that Mr.. Barbour
and Dr.. Foushee had not legally bsen
added to the pannel Of the grand Jury ):
they, were therefore Withdrawn.
The pannel having been reduced 10 &c
BY the removal Of those gentlemen i'm 9
properly summoned, col Burr expres.
sed some fegretat e1erciains ths privi-
lege OF challenging two Others for favor.
III the Fiphf vas Concealed II mieht he