Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-05-27

from the Outstanding ireeholders the
deficient number. The 7th section
of the act authorises the court to fine
the grand jurors SO summoned and
failing to. attend. The 18th section
inAicts penalty on the officer for fail !
ing to summon and return PANEL of
the grand jury.
When the marshal has exercised
his Office of sunmoning twenty-four
grand jurors his summoning functions
are at an end. The citation to ap-
pear must be. compleat /; bat when
compleat he cannot revoke it, or dis
charge the Individual summoned.
Whether a moment or week shall
intervene between the words Of citati-
on and those importing discharge
will make no dihcrence....tho' it is be-
lieved that in the Irregularities in
question, there was much Intervening
time. 1t results from the verynature
OF ministerial Office that, when per-
formed, 1t cannoI be undonc. When
sheriff has levied a fere facias he
cannot shift the service to different
property from the one seized. In
Marbury VS.. Madison & Cranch 1 56)
the supreme court decided, that when
the President of the United States,
had made an appointment BY and with
the advice OF the Senate, his constitu-
tional authority was exercised and the
selection could not be changed or
suspended. That tho the commissi-
on was in general the only evidence
of the appointment, it was not of the
essence of the appointment And
you, sir, in delivering the opinion
of the court, founded the distinc-
ton between the duties Of appoin-
ting and commissioning, in part, on
the circumstances of those duties be-
ing enjoined by different sections of
the law. Different sections of our
act prescribe the duties of summonine
& returning the grand Jurors. As the
President could not change the per-
sons by him appointed before he an
nouuced them to the Office OF state, so,
a forti0ri, the marshal cannot change
the characters by him appointed before
ne reported them TO the court. The
marshal has IN the present case taken
on himself that judicial Office, of excu-
sing without fine, which the 9TH sec.
had devolved on the court: Aud he
has superseded the operation of so
much of the 1st section as provided
for the summoning of by-standers.
If an officer dependent on the plea
sure of the prosecuting power was
thus permitted to change his PANEL
as he pleased, most alarming mis-
chiefs would be the consequences.
Every court has power to enquire iu-
to and to correct the errors oft own
! officers. We pray that the PANEL
may be purged, that the marshal may
be interrogated as to the first twenty
four summoned, and that thev, and
they alone, may be of the Jury.
would have it to be understood that
no blame can attach to the marshal.
He has mistaken the law....He is too
honest and worthy to commit an in.
territorial wrong.
Mr.. Hay, district attorney, observ-
ed that he was not very well prepared
to answer the proposition of the gen.
tleman, similar one to which ne had
never heard before but that me con-
ceived it TO be of no importance, and
was willing that Col. Burr should be
accommodated with grand jury to
which no exception could be made.
He did not know that it was strictly
proper to enter into any examinati-
on as to the manner in which the IT,
rors had been summoned. 1t had not
been long that he had been engaged
in business of this kind, and he was
happy to say that very little had oc-
Cured to demand his attention. He
was therefore the less prepared to say
what was the usualcourse Of practice ;
but he knew not why the objection
was now macle for it could make no
difference either to the prisoner or the
United States. If any of the grand
Jurors were set aside, there would ei-
Their be enough remaining of those
who had been summoned or the de-
Gceney would be supplied by the mar
shall from among the by-standers. He
submitted the whole matter to the